"Zero Tolerance" at the Border: Rhetoric vs. Reality 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." While the policy has resulted in an increase in criminal prosecutions, the so-called "zero-tolerance" as implemented continued to fall far short of the reality on the ground. During May southwest border apprehensions continued to dwarf the number of criminal prosecutions. In May 2018, CBP reported that the Border Patrol apprehended 40,338 individuals along the southwest border trying to illegally enter the country. And this does not count individuals at ports-of-entry who were found seeking to unlawfully enter using fraudulent documents, or individuals caught at ports-of-entry illegally smuggling individuals, drugs, or cargo.

Figure 1: Criminal Immigration Prosecutions

over the last 20 years Figure 1: Criminal Immigration Prosecutionsover the last 20 years In May 2018, a generous estimate indicates criminal prosecutions were still at most only 32 percent of total Border Patrol apprehensions. See Figure 1. This estimate eliminates apprehensions of children who presumably weren't subject to the zero-tolerance prosecution policy, and also excludes arrests at ports of entry. Including either or both of these groups would result in criminal prosecutions numbers representing an even smaller proportion of total CBP apprehensions. These prosecution counts are based upon government case-by-case records on each prosecution referred by CBP to U.S. Attorney offices . Obtained as the result of successful litigation brought by the co-directors of the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, these detailed records were analyzed by TRAC to gauge progress on the implementation of the Administration's zero-tolerance policy. Estimated Border Patrol apprehensions that exclude children (those under 18 who were apprehended as part of a family unit or unaccompanied) use Border Patrol records also obtained by TRAC with the age of each person who was taken into custody . For additional results, see last month's TRAC report on southwest border prosecutions. Zero-Tolerance and Family Separations Family separations, the Administration stated, was the inevitable consequence of prosecuting everyone caught illegally entering this country. As the press widely reported, "[t]he Justice Department can't prosecute children along with their parents, so the natural result of the zero-tolerance policy has been a sharp rise in family separations. Nearly 2,000 immigrant children were separated from parents during six weeks in April and May, according to the Department of Homeland Security." However, since less than a third of adults apprehended illegally crossing the border were actually referred for prosecution, the stated justification does not explain why this Administration chose to prosecute parents with children over prosecuting adults without children who were also apprehended in even larger numbers. As shown in Table 1, the total number of adults apprehended without children during May 2018 was 24,465. This is much larger than the 9,216 adults that the administration chose to prosecute that month. Table 1. Border Patrol Apprehensions of Adults vs. Criminal Prosecutions Southwest Border Apr 2018 May 2018 Criminal Prosecutions: Referred by CBP 8,298 9,216 Border Patrol Apprehensions: Adults without Children 24,299 24,465 Adults with Children 4,536 4,458 Thus, the so-called zero-tolerance policy didn't as a practical matter eliminate prosecutorial discretion. Since less than one out of three adults were actually prosecuted, CBP personnel had to choose which individuals among those apprehended to refer to federal prosecutors . The Administration has not explained its rationale for prosecuting parents with children when that left so many other adults without children who were not being referred for prosecution. Nor does the zero-tolerance policy explain why so many adults also had their children taken from them who were not prosecuted. For more background, see TRAC's report on the latest case-by-case Border Patrol data. Where Along the Southwest Border Were Prosecutions in May Concentrated? While CBP criminal prosecutions increased in all five federal judicial districts long the southwest border in April, trends diverged during May. The most prosecutions during May (3,996) occurred in the Southern District of Texas - with double the number (1,959) that had occurred during April. The Southern District of California also recorded an increase. That district had the lowest number in April among the five border districts, but climbed past New Mexico's prosecution numbers in May. In contrast, the number of recorded prosecutions actually fell in the Western District of Texas in May. During April, that district had recorded the largest number among the five districts with 2,767 prosecutions. Prosecutions during May in West Texas fell to 2,308. As shown in Table 2, May totals were also somewhat lower in Arizona and New Mexico than April prosecution numbers. Federal prosecutors also reported prosecutions within districts by the specific border community where they were stationed. Trends in each of these specific border areas within the five districts along the southwest border are shown in Table 3. In May, among these border areas, prosecutions from CBP referrals were highest in McAllen, Texas in the Southern District of Texas. A total of 2,079 prosecutions were recorded there in May alone - up from 841 in April. Prosecutions also rose in Brownsville, Corpus Christi, and Del Rio, Texas, as well as in Yuma, Arizona. Other communities experienced declines. While Tucson, Arizona, had the largest number of recorded prosecutions during April (1,392), its numbers in May fell to 1,149. Despite this decline, in May Tucson, still had the third largest total for criminal prosecutions, just below prosecution numbers in Del Rio, Texas. Las Cruces, New Mexico, Laredo and Pecos/Alpine, Texas also saw declines. Table 2. SW Border Criminal Prosecutions Referred by Customs and Border Protection, May 2007 - May 2018

(click title to open in a new window) (click title to open in a new window) Year and Month Total SW Border Arizona Cal, S. N. Mexico Texas, S Texas, W. 2007-05 2,765 1,115 334 164 991 161 2007-06 2,769 979 247 165 1,202 176 2007-07 2,181 658 328 174 811 210 2007-08 2,813 658 414 216 1,224 301 2007-09 3,422 575 406 209 1,810 422 2007-10 3,119 589 228 137 1,839 326 2007-11 2,351 402 307 156 1,319 167 2007-12 2,944 422 345 107 1,342 728 2008-01 3,014 965 332 131 990 596 2008-02 5,343 1,241 422 146 1,052 2,482 2008-03 7,169 1,571 577 556 1,232 3,233 2008-04 6,844 1,796 398 815 1,287 2,548 2008-05 6,977 1,657 407 824 2,512 1,577 2008-06 7,500 1,644 567 820 3,038 1,431 2008-07 6,900 1,639 371 604 2,395 1,891 2008-08 5,108 1,248 356 416 1,755 1,333 2008-09 9,893 1,667 648 733 5,024 1,821 2008-10 7,611 1,757 266 438 4,058 1,092 2008-11 5,667 1,413 208 387 2,728 931 2008-12 5,234 1,483 382 313 2,154 902 2009-01 5,685 1,638 281 391 1,772 1,603 2009-02 5,683 1,763 251 423 1,497 1,749 2009-03 7,044 1,974 360 578 2,078 2,054 2009-04 6,565 1,857 357 553 2,317 1,481 2009-05 5,599 1,736 201 515 1,841 1,306 2009-06 7,482 2,152 274 508 3,266 1,282 2009-07 7,110 2,205 245 529 3,064 1,067 2009-08 6,582 1,833 292 620 2,785 1,052 2009-09 7,346 2,190 559 643 2,545 1,409 2009-10 5,767 2,035 235 396 2,213 888 2009-11 5,221 2,341 262 325 1,709 584 2009-12 5,454 1,616 273 303 1,929 1,333 2010-01 4,535 1,761 253 359 1,283 879 2010-02 5,149 1,703 357 408 1,518 1,163 2010-03 6,798 2,502 315 603 1,761 1,617 2010-04 7,691 2,465 387 709 2,269 1,861 2010-05 7,451 2,756 316 608 2,308 1,463 2010-06 6,784 2,869 312 433 1,953 1,217 2010-07 5,476 2,762 276 283 1,166 989 2010-08 5,616 2,652 351 319 1,427 867 2010-09 6,714 2,075 879 309 2,428 1,023 2010-10 5,021 1,992 250 275 1,541 963 2010-11 5,012 1,962 290 271 1,632 857 2010-12 4,295 1,901 253 188 1,235 718 2011-01 4,187 1,653 221 242 1,539 532 2011-02 5,037 1,873 275 320 1,635 934 2011-03 6,592 2,623 240 632 2,169 928 2011-04 7,585 2,840 304 618 2,140 1,683 2011-05 6,664 2,620 320 499 1,901 1,324 2011-06 6,773 2,692 391 372 1,964 1,354 2011-07 5,401 1,813 426 318 1,588 1,256 2011-08 6,258 2,236 435 310 2,115 1,162 2011-09 6,390 1,869 689 302 2,293 1,237 2011-10 6,210 2,504 315 246 1,788 1,357 2011-11 5,358 2,259 324 188 1,768 819 2011-12 4,817 1,813 247 178 1,448 1,131 2012-01 5,867 2,504 226 251 1,667 1,219 2012-02 6,041 2,393 247 351 1,832 1,218 2012-03 6,532 2,236 290 448 1,953 1,605 2012-04 7,772 2,978 248 411 2,265 1,870 2012-05 8,527 2,786 354 339 2,331 2,717 2012-06 7,356 3,683 288 420 1,940 1,025 2012-07 7,751 2,952 336 328 2,304 1,831 2012-08 7,296 1,905 335 487 3,081 1,488 2012-09 7,159 2,210 487 497 2,886 1,079 2012-10 6,169 2,317 267 516 2,346 723 2012-11 7,232 2,111 280 412 2,193 2,236 2012-12 9,268 1,911 263 341 3,402 3,351 2013-01 7,760 2,152 227 384 2,715 2,282 2013-02 6,143 1,794 230 519 1,761 1,839 2013-03 7,890 1,867 226 581 3,219 1,997 2013-04 8,228 2,323 232 620 2,838 2,215 2013-05 8,083 1,542 268 737 3,298 2,238 2013-06 6,636 2,214 213 525 2,302 1,382 2013-07 6,705 2,189 233 502 1,900 1,881 2013-08 6,440 2,165 239 466 2,193 1,377 2013-09 6,454 2,053 385 503 1,919 1,594 2013-10 5,826 2,209 222 261 1,990 1,144 2013-11 5,529 1,911 210 238 1,795 1,375 2013-12 5,356 2,335 262 224 1,421 1,114 2014-01 4,959 2,309 215 192 1,069 1,174 2014-02 5,434 2,195 202 264 1,395 1,378 2014-03 5,810 2,178 239 292 1,404 1,697 2014-04 7,398 2,462 331 356 2,346 1,903 2014-05 7,070 2,598 263 318 2,235 1,656 2014-06 6,543 2,121 303 325 1,932 1,862 2014-07 8,091 1,729 215 321 4,500 1,326 2014-08 7,590 1,919 242 280 4,137 1,012 2014-09 8,857 2,455 502 441 3,967 1,492 2014-10 6,254 2,315 251 279 2,247 1,162 2014-11 4,705 1,755 228 254 1,507 961 2014-12 5,717 2,027 201 291 2,218 980 2015-01 4,514 1,669 224 247 1,748 626 2015-02 5,344 1,739 231 248 1,901 1,225 2015-03 6,398 2,012 295 372 2,655 1,064 2015-04 6,300 1,715 229 406 2,114 1,836 2015-05 5,782 1,658 252 285 1,948 1,639 2015-06 5,887 1,344 240 350 2,360 1,593 2015-07 5,370 1,214 229 385 2,140 1,402 2015-08 5,191 1,451 205 322 1,932 1,281 2015-09 6,286 1,465 279 471 2,526 1,545 2015-10 5,206 1,429 184 314 2,039 1,240 2015-11 4,454 967 147 322 1,863 1,155 2015-12 5,849 1,083 169 370 2,438 1,789 2016-01 4,816 1,221 147 271 2,057 1,120 2016-02 5,118 1,366 185 321 2,269 977 2016-03 6,608 1,366 234 429 2,532 2,047 2016-04 6,170 1,614 180 444 2,254 1,678 2016-05 6,010 1,365 209 588 2,099 1,749 2016-06 5,275 1,242 274 379 1,367 2,013 2016-07 4,028 1,168 252 207 1,014 1,387 2016-08 4,588 1,151 287 280 1,312 1,558 2016-09 5,028 1,189 415 402 1,608 1,414 2016-10 4,156 1,119 224 229 1,230 1,354 2016-11 4,700 1,366 207 246 1,123 1,758 2016-12 4,396 989 225 229 1,069 1,884 2017-01 4,013 1,250 228 219 1,078 1,238 2017-02 3,773 1,056 230 241 1,070 1,176 2017-03 3,849 1,161 267 214 1,160 1,047 2017-04 3,150 863 207 210 972 898 2017-05 3,807 1,311 257 305 1,205 729 2017-06 4,728 1,702 308 496 1,164 1,058 2017-07 4,467 1,472 287 564 1,300 844 2017-08 5,076 1,610 389 663 1,277 1,137 2017-09 5,577 1,489 627 766 1,191 1,504 2017-10 5,077 1,451 354 748 1,321 1,203 2017-11 4,320 1,257 354 610 780 1,319 2017-12 4,279 1,226 378 487 939 1,249 2018-01 5,191 1,422 432 563 1,417 1,357 2018-02 4,937 1,111 472 586 1,478 1,290 2018-03 6,368 1,443 541 844 1,905 1,635 2018-04 8,298 1,671 720 1,181 1,959 2,767 2018-05 9,216 1,411 764 737 3,996 2,308 May vs Apr '18 11.1% -15.6% 6.1% -37.6% 104.0% -16.6% May vs Mar '18 44.7% -2.2% 41.2% -12.7% 109.8% 41.2% Table 3. Criminal Prosecutions of CBP Referrals, January 2018 - May 2018 Federal District* Total Jan 2018 Feb 2018 Mar 2018 Apr 2018 May 2018 Southwest Border 34,010 5,191 4,937 6,368 8,298 9,216 Arizona Phoenix 566 97 94 157 163 55 Tucson 5,644 1,065 896 1,142 1,392 1,149 Yuma 860 262 123 145 119 211 California, S El Centro 744 115 166 166 128 169 Imperial County 3 0 0 0 0 3 San Diego 2,170 315 304 374 589 588 New Mexico Albuquerque 227 26 31 39 86 45 Las Cruces 3,684 537 555 805 1,095 692 Texas, S Brownsville 1,420 159 124 140 223 774 Corpus Christi 813 75 52 80 129 477 Houston 8 1 3 0 1 3 Laredo 3,668 552 741 971 761 643 McAllen 4,815 625 557 713 841 2,079 Victoria 31 5 1 1 4 20 Texas, W Austin 116 12 15 13 44 32 Del Rio 4,340 584 570 937 1,024 1,225 El Paso 3,357 706 596 555 894 606 Midland 3 0 1 2 0 0 Pecos/Alpine 1,541 55 108 128 805 445 Footnotes Figures also included illegal entry and illegal re-entry referrals that federal prosecutors recorded as coming from U.S. Citizenship and Immigration Services since during past periods actual apprehensions appear to have been by CBP. This case-by-case data providing a breakdown of adults versus children making up apprehended family units can be viewed at: http://trac.syr.edu/phptools/immigration/cbparrest/. Both in March and in April 2018, children made up 53 percent of the individual apprehended in family units. For May, this same ratio was used in deriving the proportion of adults prosecuted. See, for example, June 19, 2018 Washington Post article at: https://www.washingtonpost.com/news/fact-checker/wp/2018/06/19/the-facts-about-trumps-policy- of-separating-families-at-the-border/ Virtually every CBP referral results in prosecution. For example, during May 2018, federal prosecutors recorded only declining to prosecute 10 CBP referrals. Every referral in Arizona, New Mexico, and the Western District of Texas was prosecuted, none were declined. While in the Southern District of California and the Southern District of Texas, 99.7 percent and 99.8 percent, respectively, were prosecuted. TRAC is a nonpartisan, nonprofit data research center affiliated with the Newhouse School of Public Communications and the Whitman School of Management , both at Syracuse University . For more information, to subscribe, or to donate, contact trac@syr.edu or call 315-443-3563.