Overcriminalizing Immigration

"Overcriminalizing Immigration" seeks to bring immigration law into the broader conversation about overcriminalization. The author contends that state and local governments are creating "too many crimes and criminaliz(ing) things that properly should not be crimes." Immigration law is part of this pattern. Three trends converge to reinforce this pattern: the challenge to federal exclusivity in immigration regulation, sub-federal criminalization of migration, and increased federal enforcement efforts in response to charges that the federal government is "not doing enough" to enforce immigration law.

In 1993, only 5.4 percent of federal criminal cases involved immigration offenses. By 2009, 46 percent of all federal arrests involved immigration, followed by drug (17 percent) and supervision (13 percent) violations. In 2009, two-thirds of all individuals prosecuted for individual crimes were "petty misdemeanants in...five Southwest border districts"  According to the author, the criminalization of immigration has had at best a "marginal effect on migration flows....(but) has come at huge cost and could likely have been attained through more effective migration policy outside of the criminal sphere." Moreover, "the cost of immigration enforcement is crowding out other investments in criminal justice, particularly during a time of scarce resources," and leading to other harms, such as increased reliance on racial profiling and systematic violations of Federal Rules of Criminal Procedure. (Abstract courtesy Nicholas Montalto, PhD.)

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