Deterrence and deferred action

Last week, I wrote a piece at The Week arguing that conservative objections to the merits of a broader deferred action immigration order from President Obama (so-called “DACA 2.0”) must be either inhumane or outright dangerous.

The foundation for the argument was essentially this:

  1. Immigration officials lack the capacity to remove all undocumented immigrants
  2. They have therefore prioritized removing public safety and national security threats (Prosecutorial discretion)
  3. This prioritization and resource scarcity make it functionally impossible for peaceable, law-abiding immigrants to ever face deportation
  4. These peaceable, law-abiding immigrants are the same group that could benefit from expanded deferred action (we don’t know yet exactly who the President has in mind)
  5. A deferred action order would essentially notify this group that they are not at risk for deportation, thus allowing them to live and work freely
  6. Thus, his executive order likely amounts to little more than (1) reaffirming existing policy (the “Morton Memo”) + (2) notice

So conservative opposition must either be to (1) existing policy — which would be dangerous in that it would jeopardize public safety and national security (see point 2) — or to (2) notice — which would be cruel in that it would keep immigrants in the dark even though the immigration system will never deport them, driving them to exploitative work.

Danny Vinik has a post at The New Republic addressing the notice point. Vinik worries that the notice that deferred action provides crosses a legal line from prosecutorial discretion into policymaking. This is so because secret prosecutorial discretion (with no notice) preserves a deterrent against law-breaking (here, entering/remaining in the United States illegally).

Vinik relies on a law review article by law professor David Price. Under Price’s analysis, preserving the deterrent value of the law is key to furthering the will of Congress in the face of scarce prosecutorial resources. “[D]eclining to prioritize certain cases, as the executive branch might properly have done, may have very different effects from an announced, categorical policy like DACA,” Price asserts. “While the former preserves the deterrent effect of federal statutes by leaving all individuals covered by the statute in some jeopardy, the latter removes the risk of enforcement altogether. It thus contradicts the statutory policy to a degree that mere prioritization of enforcement resources does not.”

Vinik rightly notes that Congress legislates with many different goals in mind, and deterrence is just one of them. So how significantly should we weigh the deterrent goal here?

I’ve argued that the humanitarian costs outweigh the deterrent benefits of keeping prosecutorial discretion hazy and un-notified. For the sake of “supposedly discouraging migrant flows,” critics would have “millions of immigrants to needlessly live with the specter of deportation hanging over their heads. This would condemn them to living in the shadows and working in tenuous, often-exploitative conditions — even though immigration officials have no interest in deporting them.”

Even under closer scrutiny, I think this basic analysis holds up. To assess the deterrence benefits of going without deferred action, we must speculate a bit about who, exactly, might constitute the benefited group. One group of immigrants commonly mentioned is the parents of children granted deferred action under DACA. If so, can we really believe that the mere threat of potential deportation will cause any significant number of them to self-remove from the country? Would they really leave their (quasi-legalized) children behind, or even less likely, give up their children’s safe harbor from deportation?

In my assessment, the deterrent benefits for this group approaches naught, but the humanitarian costs remain huge. Though DACA children face no threat of deportation, their parents still struggle to earn a safe living and provide for a stable upbringing for their children under the threat of work penalties. This deepens the odds against DREAMer kids to do things like graduate high school or go to college.

We must also remember that any grant of deferred action will be (a) temporary, falling short of full legal status, and (b) require that its beneficiaries have lived in the United States for some years. Point (a) thus does preserve some deterrence value while removing the short-term humanitarian costs of the illusory deportation threat. Point (b) means that any deferred action will not benefit new arrivals, and therefore shouldn’t incentivize increased illegal immigration.

Skeptics might quibble with this. They might argue that deferred action shows that the U.S. is getting soft on immigration, and will eventually legalize everyone. A new arrival just needs to hang low and give it time. Moreover, they could point to the border child crisis, driven in part by misinformation throughout Central America over who is eligible for deferred action under DACA. Smugglers and coyotes may have lied to families and led them to believe that newly arrived children would be granted protection from deportation, even though this is plainly not the case under DACA.

But we can hardly afford to let our immigration policy be dictated by coyotes and deliberate misinformation. We would also face a diminished ethical quandary if a flood of adults arrived at the border, in comparison to that which we face from young children fleeing violence. Moreover, ICE already concentrates most of its removal forces on stopping new arrivals at the border. We therefore might already be equipped to blunt any unintended effects of expanding deferred action for immigrants already present.

Vinik and Price are right that there is surely some deterrence lost from expanding deferred action. But just how much deterrence is lost is a more pressing question. We must remember to consider the specifics of what the policy actually accomplishes and who it reaches to evaluate how much deterrence has really been forsaken. It might be the case that the deterrence cost is a price worthy paying.

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