Want to Take the Border Seriously? Ask California How It’s Done

Timothy Perry
Timothy Perry is a lawyer in private practice and a founder of the Los Angeles Lawyer Chapter of the American Constitution Society.

Increasingly, the Trump administration’s brand of “zero-tolerance” immigration enforcement has attracted the skepticism it deserves.  To date, Congress has refused to fund the border wall—a costly adventure of questionable utility.  Recently, the Washington Post editorial board denounced a suite of practices that erode asylum-seekers’ ability to find safety in the United States.  And then there is the policy—currently the subject of widespread and vocal criticism—that results in separating minor children from their parents at the border.

But there is also a more fundamental critique, which should unite immigration hawks and doves: in the immigration context, zero-tolerance policing is simply bad law enforcement.  Ironically, California’s response to the Trump administration’s crackdown hints at a smarter, more humane, and credible approach to border security.

How do the Trump administration and Attorney General Sessions fail Law Enforcement 101?  Their first mistake is to insist on indiscriminately prosecuting every person who crosses the border illegally.  The cornerstone of federal prosecution is prosecutorial discretion.  By carefully choosing where to devote limited resources, federal prosecutors can focus on convicting the worst offenders while sending an effective deterrent message to the rest.  The Trump administration’s zero-tolerance approach turns this standard law enforcement model on its head, targeting every border-crosser, regardless of rap sheet or ill intent.

In law enforcement terms, these migrants are best understood not as hardened criminals, but as indicators of a more serious underlying problem.  In nearly all instances, migrants rely on a professional smuggling organization to get them across the border—whether hidden in a car’s secret compartment, or guided by a coyote across the Sonoran Desert.  These organizations, crucially, are commodity-agnostic: they smuggle humans, but also drugs, laundered cash, guns—anything that turns them a profit.  They are generally the same organizations that have wreaked murderous havoc in Mexico’s cities, and which contribute to drug epidemics and gang violence in California and beyond.

If the Trump administration wanted to take border security seriously, it would forego high-volume, low-impact prosecution of economic migrants, and instead devote its prosecutorial resources to dismantling the criminal organizations that enable the illegal crossings in the first place.  Of course, this approach would not quite lend itself to the Trump administration’s harsh immigration rhetoric.  Nor would it artificially inflate the DOJ’s conviction rates.  But it would address the causes, rather than the symptoms, of border insecurity.

Ironically, California seems to appreciate this basic law enforcement tenet more than does the Attorney General.  In his April 18 press release announcing the deployment of the California National Guard to assist with border security, Governor Brown indicated that 400 troops would be deployed to fight “transnational crime within the state”—that is to say, not to narrowly enforce the immigration laws, and not necessarily at the border.  In doing so, Governor Brown gestured toward a clear-eyed law enforcement model, based on intelligence-gathering and aimed at dismantling organizations, that would genuinely make for a more secure border.  While this modest number of troops (who cannot make arrests, and who will play a supportive role) will have a limited impact in the near term, their mode of deployment reflects a coherent law enforcement strategy that should unite immigration hawks and doves.

Constitutionally, immigration is a federal prerogative.  Yet as the Trump administration has pressed a controversial immigration agenda, California and other states have stepped in to propose a competing and more tolerant vision.  Is it possible, as zero-tolerance immigration enforcement continues to attract criticism, that California might offer the smarter alternative?

In other words, if the President wants to take border security seriously, he might consider asking California how it’s done.

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