Decriminalizing Migration - Taking criminal law out of immigration enforcement is a step toward safer, healthier communities. But is it enough?

When a single mother of twins sells everything she owns and sends her children to a nation thousands of miles away, on their own, in search of a different future, she’s not preoccupied with whether her plan is lawful or not. And in the event she does think about the legality of her plan—taking stock of the laws, policies, and enforcement apparatus that may one day criminalize her sons, imprison them, and send them back—she measures the cost and resolves to go through with her decision. Her sons’ futures matter more.

I couldn’t shake off thinking about that single mother—my own—when reading César Cuauhtémoc García Hernández’s third book, Welcome the Wretched. This work is a full-throated defense of people like her—and the millions who have journeyed to the United States, no matter the risks, because the alternative was unthinkable. Or, in their considered judgment, far less perilous than staying put. Restrictions, criminal or otherwise, won’t deter them. In the history of immigration enforcement, García Hernández contends, what counts as lawbreaking is as arbitrary as the laws themselves.

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As with so much else, where Congress and the president see a problem, police, prosecutors, and prisons are their preferred answer,” he writes early on in Welcome the Wretched. Yet as he examines the history of crimmigration, García Hernández, who once wrote a whole treatise on the subject, makes plain that the very idea of criminalizing noncitizens en masse was once a foreign concept.

True, the United States has never really moved past its racialized treatment of people seeking refuge or better opportunities upon its shores, and its laws have often reflected odious distinctions based on race, national origin, and gender. But as García Hernández showed in his earlier call for abolishing immigration detention, and does again in Welcome the Wretched, the historic norm has been no criminalization—that is, for criminal law to have no bearing on a person’s immigration status. There was even a time in the 1950s and ’60s when U.S. officials saw the imprisonment of migrants unfavorably, almost ending this social experiment in its entirety.

What changed this trajectory, in García Hernández’s tracing of the history, was the backlash to the politics of the civil rights era, followed by the hysteria of the war on drugs and the onset of our era of mass incarceration. As anti-Black sentiment ran rampant during this period, so did politicians’ distaste for seeing migrants from Latin America and the Caribbean—among them Haitians and Cubans demanding compassion for their political situation—constantly in the news. With maddening speed and bipartisan support, immigrants soon found themselves caught up in the battery of laws Congress passed in the 1980s and ’90s to deal with crime and boost policing and prisons. Before long, mandatory detention, “aggravated crimes,” the deputization of local agencies in immigration enforcement, and near-certain deportation became fixtures of the U.S. code, empowering officials with breathtaking and unprecedented discretion to detain and expel people.

Another thing that changed: Toward the end of the second Bush presidency, federal prosecutors saw fit to dust off a law that more or less sat dormant for nearly a century, one that criminalized migration itself. Now this statute constitutes the most common criminal charge in the federal court system, with prosecutors wielding it to the tune of tens of thousands of cases filed every year. This is a political choice, made and remade anew across administrations both Republican and Democrat—and one that has done next to nothing to keep people from crossing the border without authorization.

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