April 21, 2016

Prosecutorial Discretion and the Immigration Debate

DAPA, Harry Litman, immigration

by Harry Litman, former United States Attorney for the Western District of Pennsylvania, lawyer, and visiting professor at the School of Global Policy and Strategy at UC San Diego.

The case for DAPA, the contested immigration program that provides for not deporting certain aliens who are parents of U.S. citizens or of lawful permanent residents, comes down to two undisputed numbers: 11 million and 400,000.

The first is the estimated number of illegal aliens in the United States. The second is the approximate number of persons who can conceivably be deported every year given the resources Congress allocates to the detention and removal of undocumented aliens. 

Given those hard numbers, it is no secret, and Congress plainly intends when it allocates funds, that DHS must exercise broad and deep discretion in determining which aliens are eligible for deportation in the first place. It is therefore no surprise that the oral argument in the case, which took place on Monday, featured extensive back-and-forth about the role of discretion in immigration law enforcement.

In fact, the need for such broad choices is a pervasive feature of federal law enforcement in general, not just in the immigration area. With the resources that they are allocated, federal authorities can prosecute only a very small fraction of the people who break federal. So they make choices – not just case-by-case by categories, set out in advance of the prosecution decision.

I am a former United States Attorney and before that an Assistant United States Attorney, or line prosecutor. In the office I headed, and every office I worked in, there were published prosecutorial guidelines that made very deep, threshold cuts among potential offenders.

For example, such guidelines specify that offenders with less than a certain amount of drugs (the amount will vary by drug), or whose fraud occasioned less than a certain amount of loss, will generally not be prosecuted in that district. (Individual exceptions are possible for particularly dangerous offenders, as indeed they are in the case of the DAPA program, whose beneficiaries remain subject to removal at any time.)

Such guidelines attempt to cull out from among an unworkably large group of potential defendants those people whose prosecution best furthers the goals of the law. Limiting enforcement activities to the small fraction of the most serious offenders is a routine and necessary feature of federal law enforcement. 

DAPA is no different. Given the reality that in any given year, more than 95 percent of the undocumented population will not be removed, DAPA instructs enforcement officials generally not to train their sights on certain aliens who have lived in the United States for at least five years and either came here as children or already have children who are U.S. citizens or permanent residents.

Nor is there anything unusual in the Obama Administration’s making policy determinations when it sets enforcement priorities. That is a routine – and again necessary – feature of each Administration. One Department of Justice might choose to devote more resources to child pornography; the next to financial fraud. Given limited resources, each of those choices represents a decision to forgo prosecution in another class of cases within the vast majority of potential offenders who can never be prosecuted.

To be sure, as critics of DAPA have argued, such priorities can be established for illegitimate reasons, for example in return for a bribe. But that is no argument against broad distinctions based on legitimate criteria. And in that regard, the factor of close family relationship to a U.S. lawful resident is a sensible point of distinction, as well as one that is already recognized in the immigration law as a legitimate basis for exercising prosecutorial discretion. As Justice Kennedy already has written for the Court, "Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime."

Critics also suggest that prosecutorial discretion requires individual determination with respect to particular offenders rather than designation of group criteria such as DAPA’s identification of a class of undocumented aliens.

The suggestion is at odds with the facts, since all agencies exercise their discretion across groups of potential offenders, nor could it feasibly be otherwise.

But even if it could work that way, there is no good reason that it should. If policy choices are to be made in law enforcement, as is unavoidable, better they be made consistently and according to criteria that can be carefully deliberated and subject to political accountability. If discretion is simply a matter for line prosecutors to exercise as they see fit on a case-by-case basis, the inevitable result will be inconsistent arbitrary results that will be shielded from public view and hence debate.  

DAPA itself is the subject of political debate in the current presidential election, with some candidates decrying the policy choice the Administration has made. That is as it should be. What DAPA isn’t, however, is an unusual exercise of prosecutorial discretion. It is rather the kind of determination that a federal agency faced with vast pools of potential defendants and sharply limited resources cannot sensibly avoid.