Deportation is clearly not punishment enough for the Obama administration. Not only has President Obama deported more people in his tenure than in any of his predecessors, his administration is responsible for the most aggressive spike in federal prosecutions of immigration offenses. Now, Latinos are the majority of those who are sent to federal prison for felonies, according to a new report (pdf) from the U.S. Sentencing Commission.
The spike, other numbers show, has been driven in large part by the federal government's aggressive prosecution of immigration offenses.
Where once people who were caught trying to enter the country without papers were allowed to opt for voluntary removal and kicked back across the border, today the federal government is choosing to file charges against people and incarcerate people before deporting them. It's a profound enough change in policy that it's changing the demographics of incarceration rates.
In the first nine months of the year Latinos were 50.3 percent of all those who were sentenced to federal prison for felony convictions. Blacks made up 19.7 percent and whites 26.4 percent. Latinos are just 16 percent of the general population though, according to the Census. This is the first year that Latinos have become the majority of those sent to prison for federal felonies.
The aggressive prosecutions are driven by a failed political strategy, immigration experts say. The Obama administration has stepped up its enforcement efforts with the hopes of encouraging a recalcitrant Congress to take up comprehensive immigration reform. "They seem to be trying to look tougher and tougher on enforcement as a down payment on immigration reform in the future," said Walter Ewing, senior researcher at the Immigration Policy Center.
"It's a losing strategy because it's never going to be enough for them," Ewing said, referring to members of Congress who demand that the border be "secured" before the country consider a legalization program for the estimated 11 million undocumented people already in the country.
The Department of Justice did not respond to calls for comment.
Today illegal reentry, that is, the crime of entering the country after having already been barred, is the number one lead charge that federal prosecutors bring, according to the Transactional Records Access Clearinghouse at Syracuse University. For the first six months of the 2011 fiscal year, the federal government pursued 18,552 new prosecutions for illegal reentry, a rate that's 3.5 percent higher than the last fiscal year. Already between 2002 and 2008, prosecutions for first-time illegal entry in district courts that line the border increased 330 percent, due in large part to Operation Streamline, a Bush-era program that mandated that anyone caught crossing the border illegally be prosecuted in federal court, and incarcerated.
The upward trend continues even though the number of people who are being caught at the border is on the decline, Ewing said. "The numbers of prosecutions keeps going up because fewer and fewer of the people who are caught are allowed to voluntarily return."
"What they're doing is creating new classes of criminals so they can beef up their numbers, in just the way this report does."
These prosecutions have had a real impact on immigrant communities.
Jay Stansell, an assistant federal public defender in Seattle, said many of his clients and those who are being prosecuted for illegal reentry are only trying to provide for their families and be good parents. Stansell laid out a common scenario where a father, for instance, was initially deported when he lost his job and turned to some quick cash that resulted in a drug conviction, but returned to the country because his wife couldn't raise their kids on her own. Once back in the country the father keeps his head down and is "scrupulously law abiding, becuse he knows that if you get so much as a traffic ticket you're going to get caught back up in this business again." But one wrong move, or one angry employer's report to immigration officials can result in another conviction.
"All of a sudden, you're facing four years in prison for trying to do the right thing," Stansell said, adding that over the years prison sentences for immigration offenses have risen.
Illegal reentry is a felony, where first-time illegal entry is considered a misdemeanor. While the sentences people receive vary, the average prison sentence for someone convicted of illegal reentry today is 14 months, according to TRAC.
"It seems to make a lot of sense to the politicians, but when it's played out on the ground, it's a lot of misery and a lot of wasted money," Stansell said.