"Zero Tolerance" at the Border: Rhetoric vs. Reality
(24 Jul 2018) The latest available case-by-case records for May 2018 reveal a total of 9,216 new federal prosecutions were brought as a result of referrals from Customs and Border Protection (CBP) in the five federal judicial districts along the southwest border. May numbers were up 11.1 percent from the 8,298 such prosecutions recorded during April, and up 44.7 percent over March figures.

This increase follows Attorney General Jeff Sessions' April 6, 2018 announcement of a "zero-tolerance policy" for those who "illegally cross over our border." An inevitable consequence of prosecuting everyone caught illegally entering this country, the Administration originally claimed, were family separations.

While the zero-tolerance policy has resulted in an increase in criminal prosecutions, these were still at most only 32 percent of total Border Patrol apprehensions of adults in May. It was also far short of the 24,465 adults apprehended without children that month. Thus, the so-called zero-tolerance policy didn't as a practical matter eliminate prosecutorial discretion. CBP personnel had to choose which individuals among those apprehended to refer to federal prosecutors. Accordingly, the stated justification for family separations does not explain why this Administration chose to prosecute parents with children over prosecuting adults without children who were apprehended in even larger numbers.

Criminal prosecutions were up in some southwest border areas, and down in others. The most prosecutions during May occurred in the Southern District of Texas - with double the number that had occurred during April. The Southern District of California also recorded an increase.

In contrast, the number of recorded prosecutions actually fell in the Western District of Texas in May. May totals were also somewhat lower in Arizona and New Mexico than April prosecution numbers.

To read the full report, including detailed figures on criminal prosecutions for each of the five southwest border districts over the last decade along with recent trends for border areas within each district, go to:

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