Donald Trump is alone in calling Mexican immigrants rapists and murderers. But the rest of the Republican presidential candidates — and some notable Democrat leaders such as Senator Dianne Feinstein of California — support tougher immigration laws. In particular, they back a call to deport illegal immigrants who have committed crimes in the United States.
I have represented dozens of noncitizens who have criminal records. I supervise law students who represent immigrant felons. My experience has convinced me that although deporting them may seem like a common sense solution, the way we do it is costly and misguided.
Started under President George W. Bush and expanded under the Obama administration, Secure Communities (later renamed the Priority Enforcement Program) asks cities, counties, and states to run background checks on everyone they arrest or incarcerate. Those who are not US citizens are placed in civil detention until an immigration official determines if their crimes warrant deportation.
The federal government says its programs help protect us from drug dealers, rapists, and murderers. Reality does not back that up.
First, detention is not needed to deport people. Rather, every noncitizen has first to appear before an officer or judge to find out if they can stay or must go. Locking up people until they get their day in court is wasteful. Since 2009, federal taxpayers have been paying $5.05 million per day to house immigrant detainees. And state and local governments run up tabs in the millions—in 2012, Los Angeles spent $26 million on this program; in 2011, Cook County of Illinois spent $15 million.
Instead of hiring more judges to speed up the process — a request Congress has repeatedly denied over the past decade — immigration courts now have up to a three-year wait time while for-profit prisons are booming: 9 of the 10 largest detention centers and 2 out of 3 of all immigration centers are run by for-profit corporations.
Second, those swept up in the program usually are not dangerous criminals. In 2013, on any given day, 34,000 people were held in detention, and the year's total was 410,000. Forty percent of those detainees ultimately ended up without a criminal record (because the charges were dropped or the defendants were acquitted), and 16 percent committed minor crimes (like the parent without a driver's license who was arrested for driving a child to school).
Third, and most important, the way we deport people for their crimes is flawed. Under current immigration law, the seriousness of an offense is based on crude categories rather than how criminal courts view the crime. A first-time offender granted probation is considered dangerous simply because he could have gone to prison. A college student arrested for urinating in public is classified as a sex offender. And crimes that took place before 1996 are grounds for deportation on a retroactive basis. (My clients have included two 60-year-olds facing deportation for decades-old offenses that were of no consequence at the time they occurred.)
But there is an alternative.
We should revert to the immigration laws that were in place before 1996. Under those rules, every immigrant who committed a crime had a meaningful hearing before a judge. He or she was able to present the facts of the crime, show proof of rehabilitation, and explain what contributions they had made to family, employers, and the community. Lost in the call to deport criminal immigrants is that many of these people had been lawfully living in the country for years. Some of them have served in the US military. Of the immigrants who stumble, many are the parents and spouses of US citizens. Deporting them comes at the cost of taking away family members from their citizen relatives.
Under the old rules, the immigration judge determined who deserved a second chance and whose conduct was serious enough to forfeit the right to remain here.
Our country is reevaluating how its criminal justice system works. People from the right and left are joining together for a call to end lengthy sentences and be — what they call —"smart on crime." Only a mean or rich country spends millions each day detaining nonviolent immigrants, sweeping up the elderly, families, and even children in their net. Instead of treating every noncitizen who has made a mistake the same, we should return to — and learn from — past practices that are fair, cost-effective, and humane. In short, it's time to be smart on immigration.
Kari Hong is an assistant professor of law at Boston College Law School and a former immigration lawyer.