PerspectiveThe Most Prosecuted Federal Offense in America: A Primer on the Criminalization of Border Crossing
The federal statute criminalizing illegal entry into the United States, 8 U.S.C.§ 1325(a), has become an unlikely focus of the Democratic presidential primary. Supporters of decriminalization argue that criminalization is unnecessary, given that immigration violations already carry civil penalties, and that prosecutions under § 1325 waste government resources, allow for abusive use of prosecutorial power and do little to deter undocumented crossings. So what precisely does § 1325 do? Why is it important? And what effect would decriminalizing illegal entry into the U.S. really have?
The federal statute criminalizing illegal entry into the United States, 8 U.S.C.§ 1325(a), has become an unlikely focus of the Democratic presidential primary. During the first round of debates, Julián Castro called for decriminalizing § 1325, and since then a large number of candidates have publicly expressed support for decriminalization. Elizabeth Warren released a comprehensive immigration platform earlier this month, outlining her own plan to decriminalize immigration violations.
Jessica Zhang and Andrew Patterson write in Lawfare that supporters of decriminalization argue that criminalization is unnecessary, given that immigration violations already carry civil penalties, and that prosecutions under § 1325 waste government resources, allow for abusive use of prosecutorial power and do little to deter undocumented crossings. Meanwhile, candidates who have refused to support decriminalization of immigration violations, such as Joe Biden and Beto O’Rourke, have argued that decriminalization of § 1325 would not unilaterally end family separation.
So what precisely does § 1325 do? Why is it important? And what effect would decriminalizing illegal entry into the U.S. really have?
