Donald Trump
Credit: The White House/Flickr

Since the Trump administration has implemented its extraordinarily strict immigration policies, stories of officials ripping children from their mother’s arms have abounded. These kinds of anecdotes are fodder for the political left to denounce the current administration’s approach to immigration laws.

But there are strong conservative arguments against Trump’s enforcement tactics as well. Conservatism, real conservatism, holds that government should be fiscally prudent. The state cannot waste its citizens’ money. Conservatives certainly believe that the government must preserve order and protect public safety. But they also believe the state must respect constitutional protections in the administration of justice.

By these standards, the current administration’s immigration enforcement has fared miserably. When we herd migrants through legal proceedings like cattle with scant due process protections, we violate not only their right to human dignity, we also misuse large sums of taxpayer dollars harming public safety and subjecting untold numbers of nonviolent people to the criminal justice system.

Consider the evidence. Illegal border crossings increased in the months immediately after the administration announced its “zero tolerance” policy and decreased only after the president partially reined it in. Because the government has a finite ability to prosecute criminal laws, zero tolerance has forced U.S. attorneys to spend precious time prosecuting low-level entry offenders at the expense of far more serious crimes. In 1996, immigration prosecutions were roughly 15 percent of total federal prosecutions. Last fiscal year, they jumped to over 60 percent, beating out narcotics, weapons, fraud and all other categories of prosecutions.

Indeed, evidence suggests the increase in entry-related prosecutions led directly to a decrease in more serious prosecutions. As illegal-entry case prosecutions have surged to a number higher than that of any year for the past two decades, drug-trafficking prosecutions have plummeted, dropping 30 percent from 2017 to 2018. Even if one is skeptical of the international drug war, the fact that prosecutions for crossing the border illegally is reducing prosecutions for drug crimes undermines one of the administration’s primary justifications for its policies.

Instead, the only sincere justification for the administration’s policies appears to be one rooted in fearmongering and emotionality. Conservatives, who have long prided themselves on being sober minded and realistic, should reject it.

Illegally entering the country did not become a crime until 1929, when Sen. Coleman Livingstone Blease, a pro-lynching white supremacist from South Carolina, successfully proposed making it a misdemeanor (before, border enforcement was largely done administratively). It did not take long for the government to begin prosecutions. The following year the government secured almost 7,000 convictions for illegal entry and re-entry, a large share of the nearly 21,000 deportable aliens apprehended.

But these numbers quickly fell, and the use of criminal penalties to deter illegal entries turned out to be mostly symbolic. Instead, prosecutors funneled most illegal entries through the civil system, rather than wasting their time dragging migrants who had done nothing but cross the border through criminal courts. This remained standard for six decades. As recently as 1993, the government apprehended over 1.3 million border-crossers but prosecuted only 801 illegal-entry cases and 2,361 illegal re-entry cases.

But beginning in the mid 1990s, anti-immigration sentiment ramped up as illegal border crossings soared. In response, criminal prosecutions of border crossings also began to rise, tripling from under 10,000 in 1995 to over 30,000 in 2005. It was just the beginning. In 2005, President George W. Bush launched Operation Streamline, which required federal attorneys to prosecute criminal entry-related offenses rather than granting prosecutors the discretion to enforce these laws through civil immigration courts. It remained in effect through President Barack Obama’s administration, and criminal prosecutions of entry-related offenses continued to increase dramatically.

But, especially under Obama’s latter years, the federal government gave prosecutors some discretion as to which border-crossers to apprehend, detain, and deport. That changed soon after President Donald Trump took office. In 2018, then-Attorney General Jeff Sessions implemented the “zero tolerance” policy, which offered effectively no discretion. Operation Streamline deprioritized the prosecution of parents traveling with children. But zero tolerance does not. In fact, Sessions expressed publicly a desire to prosecute adults traveling with children. “If you don’t want your child separated,” he remarked, “then don’t bring them across the border illegally.”

The consequences are well known. Thousands of children were separated from their parents. At least 24 immigrants have died in ICE custody during the Trump administration, and at least four others died shortly after release. And due process—which allows people to contest government infringements of their liberty in a timely manner in front of a neutral arbiter, with legal representation and advised of their rights—has fallen by the wayside. The backlog of immigration cases has exploded to well over 800,000 immigrants, with an average wait time of over 736 days for a hearing. Perhaps unsurprisingly, a 2016 study observing 400 interviews conducted at ports of entry concluded that border officers did not properly advise noncitizens of their rights.

Due process was a concept the framers held dear. It’s essential for those who believe in adhering to the text and original meaning of the Constitution. Conservatives should believe that even undocumented individuals, if found within U.S. borders, are entitled to due process. But Trump’s policies make it effectively impossible.

This might be at least somewhat palatable if it led to better public safety. The idea of “ordered liberty,” that the government should spend to preserve internal and national security, is what separates conservatism from its libertarian ideological neighbor.

But despite assertions to the contrary, zero tolerance fails to target dangerous criminals. In Trump’s first hundred days, ICE arrested 41,300 noncitizens, a 38 percent increase from the same time period in 2016. They claimed that 75 percent of arrestees had criminal convictions, but ICE’s own data showed that only 6 percent had convictions for violent crimes. Last year, the raw number of ICE arrests for level one “serious crimes” decreased 17 percent from 2016, while arrests for level three “minor violations,” and arrests of those with no convictions at all, shot up 19 and 39 percent, respectively. During the first fiscal year of Trump’s presidency, for example, large-scale human-smuggling cases launched by ICE’s investigative arm dropped almost 60 percent.

The recent increase in immigration prosecutions along the southern border has also been accompanied by a decrease in prosecutions of other federal crimes. It is difficult to prove with certainty that zero tolerance has caused this, but a report by the Transactional Records Access Clearinghouse, a research center at Syracuse University, notes that “unless crimes are suddenly less prevalent in the districts along the southwest border, the odds of being prosecuted for many federal offenses have declined.” This increase in immigration prosecutions — and the concomitant decrease in prosecutions of other, often more serious, crimes — certainly does not make us safer. That’s particularly true given the relatively low rates at which immigrants, including undocumented immigrants, commit crimes.

Dragnet prosecutions of all entry-related offenders also harm public safety by deterring immigrants from reporting crimes and working with law enforcement investigations out of fear. Republicans often contrast themselves from Democrats with their passionate defense of Americans in blue, but a recent report found 67 percent of police officers reported that immigrants’ fears of deportation affected officers’ ability to protect survivors of crime, and 64 percent indicated that this had “an adverse impact on officer safety.” Trump’s immigration policies are making it harder for cops to do their jobs.

Prosecutors have expressed similar concerns. As ICE and Customs and Border Protection officers have stepped up surveillance, immigrants are increasingly being arrested at courthouses where they may be testifying in criminal cases. In fact, over half of judges surveyed in the report say cases in their courtrooms have been interrupted because immigrants are avoiding court out of fear of deportation.

Entering the country without documents, of course, is a crime itself. The high costs, fiscal and moral, of zero tolerance may be worthwhile if the efforts prove successful in deterring illegal immigration. However, several studies indicate that although aggressive enforcement and prosecutions may deter migrants for whom the benefits are relatively low, such as single adult males looking for work, other classes of migrants are much more difficult to deter. Prosecution and incarceration are far less likely to stop adults looking to reunite with children or people fleeing violence in their home countries. The latter two categories are rapidly replacing the former as the share of people crossing the border unauthorized.

The federal government spends $18 billion each year on immigration enforcement. This is nearly $4 billion more than the combined budgets of the Federal Bureau of Investigation, the Drug Enforcement Administration, the Secret Service, and the Bureau of Alcohol, Tobacco, Firearms and Explosives. Prosecuting immigrants for entry-related offenses has eaten up an increasingly large share of this $18 billion total. Incarcerating these immigrants has cost the government billions more.

These costs should worry fiscal conservatives. The government is using enormous sums of money to prosecute otherwise law-abiding individuals who have much to offer society. Immigrants bring down crime rates and contribute more to taxes than they receive in benefits. They buy from American businesses and begin businesses of their own. Given these realities, a policy that mandates their profligate prosecution and incarceration is a clear mismanagement of taxpayer resources.

It is also not in keeping with conservatism’s history. Nobody would accuse either Ronald Reagan and George H.W. Bush of harboring an affinity for open borders, but both candidates acknowledged the basic humanity of “our neighbors from the south” while recognizing the need for certain border security measures. Because of his clear-headed approach to the issue, Reagan was able to strike a compromise on border security.

Conservatives should return to a policy of prosecutorial discretion that treats criminal sanctions as a hammer and not a panacea. We should recall that the United States is a nation of immigrants, a place where the persecuted could find shelter. Should we forget this history, we will find ourselves a lesser nation.

Arthur Rizer and Jonathan Haggerty

Arthur Rizer (@arthurrizer) is the Director of Criminal Justice and Civil Liberties at the R Street Institute. He is a former federal prosecutor in the Criminal Division of the Department of Justice, where he targeted command-and-control drug cartel leaders and narcoterrorists. Jonathan Haggerty (@JHaggrid) is the Criminal Justice and Civil Liberties Manager at R Street.