When Ronald Reagan said, “There you go again …” in the 1980 presidential debate, he wasn’t talking about people repeatedly crossing the border without documentation or repeatedly being arrested for new crimes. But he could have been. While border security and recidivism are both grave problems that reveal larger failings, the data on each is often presented or interpreted in a way that overlooks a crucial reality: the same people account for much of the activity.
Relying only on data that conflates these chronic cases with many others that involve people whose first apprehension or arrest is their last is not a harmless, esoteric research matter. Instead, combined with the failure to consider how enforcement practices can also affect these metrics, it feeds a flawed public perception that both systems fail an inflated number of unique individuals. This obscures the need for differentiated policy responses for each group. It can also lead to cynicism about the viability of any solutions let alone radical approaches, such as closing the border even to legal traffic and abolishing prisons.
There are two common data deficits affecting border security and the justice system. First, the most frequently cited statistics mostly track incidents – border crossings or re-arrests – rather than discrete individuals. That’s a problem, because the reality is it’s often the same individuals running up the totals again and again – as Reagan’s remark implied.
For example, reports there have been more than 1 million apprehensions at the border obscure the fact that in June, 34% of these apprehensions involved people who were previously encountered within the last year. That marks a sharp increase from 14% of the total from 2014 to 2019.
This change has been attributed in part to the Title 42 public health exception to the normal asylum process that was invoked by the Trump administration because of the pandemic. The policy has been maintained by the Biden administration, but with exceptions added for unaccompanied minors and those who Mexico refuses to accept back. Put simply, if a migrant who previously would have been allowed upon initially crossing to present an asylum claim, which can take years to resolve, is now instantly expelled under Title 42, then they may cross again and again, contributing further to the total number of apprehensions. Importantly, migrants who present themselves to claim asylum are not violating the law, unless their prior asylum claim went to court and was determined to be frivolous, though it is undeniable the current system lacks sufficient immigration judges and other resources to properly process current volumes of asylum cases.
People who are barred from completing the asylum process and immediately deported under Title 42 often face devastating human consequences given the desolate deserts and dreadful refugee camps on the Mexican side of the border. In terms of border security, when the same person is repeatedly turned back, it means that far fewer than one million unique individuals crossed the border. This suggests that the problem is less about the failure of the U.S. enforcement system, and more about the hyper-local dynamics which compel so many people to push northward again and again.
Likewise, FBI data show more than 10 million arrests in 2019, but these are not disaggregated to unique individuals. Longstanding delinquency research has found that, among juveniles, about 70% of those arrested for the first time are never arrested again. But another segment of both youths and adults are chronically re-arrested. One report from New Mexico, for example, noted that 4,600 people with ten or more arrests accounted for 20% of all arrests, but represented just 4% of the unique individuals arrested.
Unlike the situation with border apprehensions, where the share of chronic cases is largely known but overlooked, when it comes to the national data on arrests, this information is simply unavailable. Some local data, however, suggests that COVID-related court backlogs in Houston, Charleston, SC, and Everett, WA may be exacerbating the subset of this problem involving those re-arrested before their initial case is resolved.
While courts must continue to apply the presumption of innocence in ensuring that pretrial detention is, as the late Chief Justice William Rehnquist wrote, the “carefully limited exception” rather than the norm, detention after due process is sometimes necessary, particularly for those arrested and then re-arrested while their case is pending for serious crime. But some people, many of whom may be experiencing mental illness or homelessness, are repeatedly arrested for minor offenses such as trespassing. As courts cope with dangerous levels of backlogs, interventions for such defendants, including referrals to treatment for mental illness and substance use disorders, are delayed when evidence suggests swift and certain interventions are most effective. This may contribute to the “super utilizer” population representing a growing share of total crime.
The second common problem in aggregate immigration and justice system data is the focus on raw incident data ignores the evolving impact of changes in enforcement practices. If a greater share of undocumented border crossings is detected or a greater share of victims report crime, that could signal at least one aspect of the system is working as intended. Official figures only reflect the border crossings that result in an apprehension. Therefore, if the effectiveness of personnel and technology on the border improved, it would ostensibly result in a greater percentage of illegal crossings being detected. Similarly, if strategies such as community-oriented policing and independent investigations into police misconduct resulted in increased trust between police and communities, a greater percentage of crimes might be reported and therefore included in FBI crime data.
Untangling the effect of changes in enforcement tactics on aggregate data is challenging, so we don’t know to what extent increased detection, rather than simply more migration, may be contributing to recent upticks in recorded border apprehensions. And although crime data reflects all reports from victims regardless of whether a suspect is identified or found, most property and violent crimes are never reported; a Council on Criminal Justice analysis found that reporting rates for both violent and property crimes fell substantially from 2010 to 2019.
Some might question the importance of disaggregating and contextualizing data, since the border is clearly insecure and the criminal justice system is a revolving door in far too many cases. However, there are real drawbacks to a muddled approach.
First, the failure to focus on discrete persons can lead us to believe that what these systems deem to be repeat failures are spread over a broader group of people than is truly the case. Second, the exaggerated failure rates in these contexts can underestimate the impact of targeted interventions that result in the system succeeding on at least its own terms for a greater percentage of people than we acknowledge.
Disaggregating the data helps us focus tailored solutions both on those who need a lighter touch from the system and on frequent utilizers, who continually cycle through the system for minor offenses like drug possession and trespassing with their underlying problems left unaddressed. For the frequent utilizers, interventions such as the LEAD program in Seattle show promising results.
For those who have an isolated brush with the law, the system should show restraint. One new study found that people not prosecuted for low-level misdemeanors, who tended to be those with no prior recent arrests, were less likely to be re-arrested if their case was diverted rather than prosecuted. This is unsurprising given that an initial criminal record comes with a stigma, thereby interfering with many pro-social activities that protect against further criminal activity.
Complicating this challenge is the fact that the criminal justice net is too wide, with a significant number of arrests resulting from unpaid fines and fees and marijuana possession. The breadth of the net also flummoxes our efforts to secure the border, where the frequent fliers include drug kingpins and human traffickers. This group must be prosecuted and punished, but they would be easier to find if not for the masses of refugees with credible asylum claims and workers who, if they had a path to legal status, might not be sneaking across the border. As the Wall Street Journal reported in July, Mexican men looking for work are accounting for an increased share of crossings, a trend that follows a pandemic-related reduction in legal worker visas by 750,000 in 2020.
More broadly, on both immigration and crime, focusing only on incident data and even individual cases can contribute to an atomistic view that ignores the broader environments that contribute to illegal border crossings and recidivism. For example, we see many crossings by people from Venezuela but not from the closer Costa Rica, a prosperous, free-market democracy. Likewise, people released from jails or prisons with a job, family assistance, and reentry services are much less likely to return to crime and evidence suggests that neighborhood-level interventions like installing street lights and clearing out abandoned properties can reduce crime. Ultimately, making major headway in breaking both cycles requires fostering stable and safe communities at home and abroad in which people can thrive.
Perhaps most concerning is that the failure to disaggregate and contextualize data on immigration and crime can feed a broader cynicism on both the far left and right, triggering either despair or unnecessarily drastic proposals with severe unintended consequences. On the far left, some cite the failures of prisons and jails to justify abolition. On the right, some argue for a wall spanning the entire 1,900-mile border, including areas so treacherous they are almost never traversed, or even a shut down of all legal traffic and trade between Texas and Mexico.
Beyond the constantly contentious issues of crime and immigration, one thing polls suggest Americans increasingly agree on is dissatisfaction, with only 14% saying the nation is doing well. Of course, this is largely for different reasons, as those on the left fear we aren’t successfully confronting income inequality and climate change while those on the right worry that the national debt and Chinese ascendency threaten our way of life.
This pessimism is fed by a media ecosystem on both sides that often turns a more negative gloss on the news into more eyeballs on the screen. While urgency in confronting problems and some skepticism toward government are healthy, statistics that provide an incomplete picture or are misconstrued can lead to cynicism and a belief that our challenges are intractable, as opposed to enhancing our collective capacity to confront them.
By focusing on discrete people and acknowledging how enforcement activities shape data on immigration and crime, we can shed light rather than heat on these complex problems. It’s worth noting that other systems, such as health care, have similarly taken steps to address the underlying needs of frequent users, with limited success. Looking behind the numbers, we will, as President Reagan suggested, find some familiar faces but also the potential for more effective and targeted solutions.
Marc Levin, Esq. is Chief Policy Counsel for the Council on Criminal Justice and can be reached at mlevin@counciloncj.org and on Twittter at @marcalevin. Khalil Cumberbatch is Director of Strategic Partnerships at the Council and can be reached at kcumberbath@counciloncj.org and on Twitter at @KhaCumberbatch.
