Indefensible: A Decade of Mass Incarceration of Migrants Prosecuted for Crossing the Border
Date:  08-08-2016

New downloadable book estimates that prosecuting 730,000 people for immigration violations over past 16 years costs taxpayers at least $7 billion
With immigration being a hot topic in the upcoming presidential elections, the book Indefensible: a Decade of Mass Incarceration of Migrants Prosecuted for Crossing the Border is sure to be a source of discussion among all political parties.

Key findings and recommendations from Indefensible:

1. Since 2005, nearly three quarters of a million people, have been prosecuted in our federal courts for the crime of improper migration: 412,240 for improper entry and 317,916 for re-entry. This escalating system of migrant prosecutions is making a significant and growing contribution to mass incarceration, and to overcrowding in our federal prison system.

2. We conservatively estimate that just the costs entailed by the jail and prison terms that result from criminal prosecutions for improper entry and re-entry total at least $7 billion since a large share of this tax burden produces increased profits for the country’s leading private prison corporations.

3. Economic circumstances and family responsibilities overwhelmingly drive improper migration, and there is no convincing evidence that incarceration is a deterrent for people facing these pressures. The resulting human costs to those prosecuted, their families and communities are incalculable.

4. The system is not seen as effective by most of the judges and lawyers that participate in the process day in and day out. They say that Operation Streamline and the related felony prosecutions are driven by politics, not by good policy.


1. The Attorney General should move to de-prioritize and ultimately end improper entry and re-entry prosecutions.

2. U.S. Attorneys in the border districts should use their enormous power to de-prioritize improper entry and re-entry prosecutions and devote their resources to focus on crimes that threaten public safety and/or cause serious harm to the well-being of our nation.

3. The U.S. Sentencing Commission should reject any proposed amendments to increase sentences for improper entry and re-entry, and should actively seek to remedy already exorbitant sentences. The base offense level should be reduced so as to decrease sentencing recommendations relative to the many more serious offenses currently assigned to Level 8.

4. Insofar as the current political climate does not allow for constructive legislative action, members of Congress who comprehend the harms done by these prosecutions should call on the Department of Justice and the U.S. Attorneys to end them.

Finally, until the Department of Justice, the U.S. Attorneys and the Sentencing Commission take the actions recommended above, we urge that — to the extent that they are not bound by rigid plea agreements or guideline constraints — federal district court and magistrate judges reflect about the inexorable harms these prosecutions visit upon migrants and their fami-lies. Understanding that most face immediate removal, judges should give thoughtful consideration of whether “time served” might be the most appropriate sentence.

Download the pdf “Indefensible: a Decade of Mass Incarceration of Migrants Prosecuted for Crossing the Border here.