Columnist Razvan Sibii: There’s no good reason why border-crossing should be a crime

  • A journalist in Anapara, Mexico, sticks her microphone through a through a border fence to interview a Border Patrol agent following a training exercise on Friday, Jan. 31, 2020, in Sunland Park, New Mexico. Journalists in Mexico filmed the use-of-force exercises through gaps in the bollard-style wall. AP

Published: 5/18/2020 4:02:27 PM

A long time ago, 20 presidential candidates debated live on TV on two consecutive nights, largely setting the terms for the Democratic agenda going into the 2020 elections.

The twin events were quickly framed as a confrontation between the “radical” and the “moderate” wings of the party. The cleavage was most evident when the discussion turned to two immigration-related topics: whether undocumented immigrants should be covered by government health care plans, and whether illegal border-crossing should be decriminalized.

The “moderates” were horrified at the idea that 10.5 million undocumented immigrants should receive health insurance from the state. They said the country wouldn’t be able to afford it. They also suggested — without explicitly saying it — that lawbreakers like undocumented immigrants shouldn’t be high on the list for government services.

Now, after Congress miraculously found trillions of dollars to help people hit hard by the COVID-19 crisis, the “It would cost too much” argument has been thoroughly deflated. And, with the growing realization that a huge portion of the “essential workers” that our food supply chains depend on are undocumented immigrants, the “Lawbreakers don’t deserve services” argument isn’t doing all that well, either.

But some of the Democrats on that debate stage didn’t need a pandemic to convince them that undocumented immigrants shouldn’t be treated like criminals. Former Housing and Urban Development Secretary Julián Castro (whose demise, in my opinion, was unfortunate and premature) challenged his opponents to stop dancing around the issue and endorse the elimination of the law that criminalizes unauthorized border-crossing. The ensuing back-and-forth with Beto O’Rourke was one of the highlights of the night.

Sections 1325 and 1326 of the U.S. Criminal Code provide criminal penalties for the illegal entry, and, respectively, illegal reentry, into the United States. So, yes, we have laws against crossing the border without authorization, and, as such, you could call undocumented immigrants “lawbreakers.”

But it would be disingenuous to do so without also taking into account several additional considerations: 1) These particular laws have their origins in the moral marshes of Jim Crow racism, 2) Until relatively recently, the laws were very sparingly and selectively enforced, 3) The laws do little to discourage people from crossing (and re-crossing) the border illegally, and 4) Even under these laws, first-time illegal entry into the U.S. is nothing more than a federal misdemeanor, akin to “unauthorized grazing” on federal lands (Hello, Cliven Bundy!), “criminal infringement of a copyright” (Hello, BitTorrent!), “engaging in the business of selling or transferring obscene matter” (Hello, Pornhub!), the simple possession of marijuana (Hello, neighbor!), and “violation of quarantine laws” (“Liberate Minnesota!”).

The two laws were passed in 1929, and were the creation of South Carolina Democratic Sen. Coleman Livingston Blease, an outspoken and unapologetic white supremacist. The target of the laws, then as now, were Latin Americans who came to work in the United States. Subsequent administrations, however, largely ignored the statutes, having recognized both their unsavory origins and their general ineffectiveness.

The political environment changed dramatically after 1964, when Congress eliminated a temporary worker program for Mexicans but did nothing to alleviate the need for farm and field hands, which created, seemingly overnight, a large population of undocumented immigrants.

Spooked by the numbers, the federal government then unrolled several border enforcement initiatives, whose unintended consequence was the stranding of many undocumented Mexican workers on the north side of the border. The subsequent game of cat-and-mouse that immigration agents and undocumented immigrants found themselves engaged in was tragic and costly — but the government still saw no use for a large-scale application of Blease’s laws.

It was George W. Bush who, in the wake of the Sept. 11 attacks, began criminally prosecuting large numbers of undocumented immigrants instead of placing them under civil deportation proceedings. Barack Obama further expanded the use of criminal charges, while also instructing government agents to prioritize the targeting of undocumented immigrants with prior felonies. Then came Donald Trump, whose notorious family separation policies stem directly from the indiscriminate enforcement of the two laws.

Given that the strongest argument in favor of criminally charging people who cross the border without authorization is disincentivizing them from doing it over and over again, it should come as no surprise that social scientists have lately sought to see if that is, in fact, what happens.

One high-profile study, undertaken in 2018 by sociologists Daniel Martínez, Jeremy Slack and Ricardo Martínez-Schuldt, revealed that deported immigrants who consider the U.S. to be their home have every intention of crossing the border again despite undergoing criminal prosecution. Two-thirds of all undocumented immigrants in America have been here for more than a decade, and more than 4 million American-born children have a parent who is undocumented.

“We are systematically criminalizing the mothers and fathers of a large segment of mixed status family youth. And we do not yet understand the long-term consequences of this punitive approach to immigration control. But it doesn’t seem promising,” Martínez told me in an interview.

As with the militarization of the border in the 1990s, the criminal prosecution of undocumented immigrants has had plenty of harsh consequences — just not the intended ones.

When Julián Castro challenged the other Democrats to commit to the repeal of Blease’s laws, only one of the top five candidates refused to do so: Joe Biden.

“Biden has expressed a lot of hesitance to even acknowledge some of the criticisms about the Obama administration,” Martínez’s colleague, Jeremy Slack, told me. “So I expect him to leave this problem untouched. I think regardless of if the Democratic candidate comes in, there will have to be a lot of work done by organizers to try and find ways to convince the administration to help the border, to help immigration.”

Razvan Sibii is a senior lecturer of Journalism at UMass Amherst. He writes a monthly column on immigration and incarceration. He can be contacted at

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