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We are All Criminals; Yet Most of Us Walk Free

The Politics of Law-Breaking



Let he (or she) who has never broken the law hurl the first insult.

One of the most popular refrains we hear these days about undocumented migrants is that they are criminals because they broke the law. Those who defend undocumented migrants point out that crossing the border is the statutory equivalent of driving without a valid license or jaywalking. And, who has never jaywalked? More pointedly, would you blame someone for jaywalking if they ran across the street to prevent a child from being hit by a car?

There are plenty of people who stand up for undocumented migrants and insist that they are not criminals, just hardworking folks who came to this country for a better life. However, there are fewer people who advocate for “criminal aliens” ? immigrants who have committed a crime, and face deportation because of their criminal convictions. When I write a post about a legal permanent resident who has lived in the United States for nearly all their life yet who faces deportation for selling drugs, using drugs, or shoplifting, a prevalent response is: “They broke the law and must face the consequences.” Another response I get is: “Why are you standing up for those immigrants who break the law? Their law-breaking activity is an insult to hard-working, law-abiding Americans.”

The fact of the matter is that most Americans, hard-working, or lazy, have broken the law at some point in their lives. More than half of Americans have use or sold illegal drugs. If we take into account prescription drug abuse, the percentage of people who have broken drug laws is even higher. Most Americans have shoplifted. Others have omitted information from tax forms, taken office supplies home from work, urinated in public, defaced public property, consumed alcohol under the age of 21, or used a false ID to get into a club. The United States is a land of laws and nearly every American has broken one. In fact, nearly every person in the United States has committed an offense that would make them deportable, if they are not U.S. citizens.

Law-breaking in the United States is so prevalent that police officers could not possibly arrest, charge, and prosecute each law-breaker. Drug laws represent a particularly poignant case. Law enforcement agents cannot fully enforce drug laws because drug use and selling are too widespread. As Michelle Alexander notes in her book, The New Jim Crow http://www.newjimcrow.com/ , more than half of the people in the United States have violated drug laws at some point in their lives, yet relatively few have been punished for this. In any given year, about ten percent of American adults violate drug laws. In 2002, for example, there were 19.5 million illegal drug users. In that same year, 1.5 million people were arrested for using drugs, and 175,000 people were admitted to prison for a drug offense. As law enforcement agents have neither the resources nor the mandate to prosecute every law-breaker, they must be strategic with their resources and enforcement tactics. Being strategic often means focusing law-enforcement efforts on open air drug markets in African-American and Latino communities, while leaving primarily white suburban drug dens alone.

Most people in the United States have broken the law, yet only a few are punished. Punishing every single law-breaker is neither possible nor desirable. Just imagine for a minute what would happen if all 19.5 million drug users were arrested, prosecuted, and jailed. Imagine the families that would be broken apart, the jobs that would be lost, the businesses that would be destroyed. As it is, we are already harsher than most countries when it comes to drug laws. When we look at the total number of prisoners in the United States, our prison population dwarfs that of other, much larger, countries. In 2009, the United States had 2,292,133 people behind bars www.prisonstudies.org. The country with the second highest number of prisoners was China, with 1,650,000 prisoners, followed by Russia, with 809,400, Brazil with 496,251, and India came in fifth place, with 384,753. Much of this disparity is due to the War on Drugs. In most other developed countries, a first time drug offense would lead to no more than six months in jail. In the United States, the typical mandatory minimum sentence for a first-time drug offense in federal court is five or ten years.

The truth is we are all criminals. Only some of us are prosecuted. Most of us walk free.

Our criminal records are a reflection of whether or not we have been caught committing a crime. They are not an accurate reflection of our actual criminal activity. If we define criminals as anyone who has broken the law, nearly all of us are criminals.

I hope we can keep this in mind as we move forward towards immigration reform and away from mass incarceration and mass deportation.

Tanya Golash-Boza is on the faculty at the University of Kansas. She blogs at: http://www.stopdeportationsnow.blogspot.com/