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I teach immigration law. I recommend this thread by @juliettekayyem, debating @JulianCastro on 1325 repeal. It’s the best non-racist case that can probably be made for keeping 1325, beyond mere political calculation. But I believe her arguments to be flawed in 3 ways (thread):
1) Misdemeanor punishments don’t deter migration, although as we’ve seen formal criminalization can be the legal foundation for remarkable cruelty. In general in immigration policy, deterrence becomes a rationale for cruelty, and little more.
2) If the goal is to detain (a goal I can’t per se endorse, but still) I fail to grasp why this misdemeanor statute is not duplicative of non-criminal provisions that allow long term detention of migrants.
3) Perhaps the idea of a “baseline” deterrence is really normative. It’s about saying that someone who has crossed the border is morally wrong. But then you have to defend that proposition.
In general, as a matter of criminal law 1325 is mala prohibitum. As such, it should be left on the books only if some good comes from it, on balance. I can see a case that calling for its repeal makes bad politics. But I can’t see the case that 1325 actually is good policy.
