The Volokh Conspiracy
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The Laken Riley Act is Unjust - and a Trojan Horse
The act doesn't target violent criminals and sex offenders, and is likely to harm innocent people and divert resources from genuine anti-crime efforts. It also makes it easier for state governments to try to impede legal immigration.
Yesterday, the House of Representatives passed the Laken Riley Act (LRA), in a 264-159 vote. This legislation - named after a student killed by an undocumented immigrant - is often sold by proponents as a tool for combatting murderers and sex offenders. In reality, it focuses on detaining undocumented immigrants charged with theft-related crimes, including minor ones. It also includes a Trojan horse provision making it easier for states to challenge a variety of programs that make legal migration easier. These policies are unjust, and likely to impede genuine crime-fighting efforts more than they help them.
The main provision of the Laken Riley Act requires mandatory federal detention of any undocumented immigrant who "is charged with, is arrested for, is convicted of, admits having committed, or admits committing acts which constitute the essential elements of any burglary, theft, larceny, or shoplifting offense." Notice that the provision is triggered by a mere arrest or charge, and does not require any proof of guilt beyond that. Moreover, even the most minor forms of theft, burglary, or shoplifting qualify. If a migrant is arrested on suspicion of stealing a dime or a paperclip from a store, that's enough to trigger mandatory detention. Ditto if he or she is charged with even the most minor theft-related offense.
Pretrial detention is already overused, even when it comes to US citizens. Forcibly detaining people who have never been tried or convicted of any crime is presumptively unjust, and should only be resorted to when it is the only way to prevent some grave threat to public safety, as in the case of suspected serial killers or terrorists. The whole point of requiring trial and conviction before imprisoning people is to ensure that only those actually guilty of crimes are subject to such severe punishment. Making pretrial detention mandatory for a large population for arrests and charges for even the most minor theft-related crimes only makes the injustice worse.
Moreover, detention is expensive. Federal immigration detention currently costs an estimate $165 per day per detainee, and that doesn't count the costs of taking people out of the workforce. Those funds can be put to better crime-fighting use by, for example, putting more police on the streets, a strategy with demonstrated crime-reducing effects. Spending them on detention of migrants arrested or charged with even minor theft-related crimes is a waste. As my Cato Institute colleague and immigration policy expert David Bier notes, the first Trump administration's efforts to detain and deport nonviolent asylum seekers and undocumented immigrants predictably diverted resources from combating serious crime. If enacted, the Laken Riley Act will likely have a similar effect.
Moreover, the Laken Riley Act creates perverse incentives for state and local police and prosecutors. Normally, they are reluctant to arrest and charge people when there is little chance of securing a conviction. But under the LRA, a bogus arrest or indictment of an undocumented immigrant on a theft-related offense leads to mandatory detention paid for by the feds - not the state and local governments themselves. And such detention occurs even if the target is never convicted of anything. This could well incentivize officials with nativist sentiments (or those catering to such sentiments) to make dubious arrest and charging decisions. After all, the feds will foot the bill!
To be sure, a person suspected of even minor theft might, if released until trial, commit more serious crimes. Detaining such people will prevent at least a few more serious offenses. But by that reasoning, we should preemptively detain anyone who is suspected of even the most minor offense. There is always a small chance they might otherwise commit murder, rape, or assault.
For fairly obvious reasons, such preemptive mass detention would be gravely unjust. It would also actually undermine crime-fighting efforts by diverting resources from more effective strategies. And that is even more true for mass detention policies that target undocumented immigrants, who have significantly lower violent crime rates than native-born citizens.
Elsewhere, I have argued that migrants who commit crimes should get the same punishment as natives, not the more severe additional punishment of deportation. Governments can and should severely punish people who commit crimes of violence and theft. But no one should get extra punishment merely because of an arbitrary circumstance of birth. That position is one of my more unpopular views. But even if you don't accept it anything likely fully, you should at least consider whether it's just to have preemptive mass detention of undocumented migrants arrested or charged for very minor crimes - even in cases where the evidence against them is weak and the underlying crime would not normally result in a prison sentence upon conviction.
The LRA also includes a provision unrelated to any kind of violent crime or even theft, that gives state attorneys general standing to challenge in federal court any supposed violation of the requirement "that parole [for immigrants] solely be granted on a case-by-case basis and solely for urgent humanitarian reasons or a significant public benefit," so long as the state or its residents suffer any "harm" as a result, "including financial harm in excess of $100." There is a similar provision giving state AGs standing to challenge grants of other types of visas.
The goal of this provision is to make it easier for states to challenge federal programs that grant visas or parole (temporary legal entry, employment, and residency in the US), such as the Biden Administration CHNV program for people fleeing horrific violence and oppression in four Latin American nations (including three ruled by brutal socialist dictatorships). Last year, a conservative federal judge ruled against a lawsuit brought against the program by a coalition of red states, on the ground that the latter lacked standing due to not having suffered the requisite "harm" because of the program.
The LRA would make it much easier to get such standing. The requirement of $100 in financial harm can almost always be met, especially since the statute doesn't require a showing of net harmful effects. If a parole or visa program cost the state or one of its residents $101 on one occasion, that's enough, even if the state and its private sector actually derived large net benefits from the program, such as increased tax revenue and economic growth.
As a longtime critic of restrictive standing rules (at least as a constitutional matter), I am actually somewhat ambivalent about this provision. But, on balance, I oppose asymmetrical reduction in standing requirements that makes it easier for states to challenge federal policies that make legal migration easier, but not those that aim for the opposite effect. If we are going to reduce state standing requirements for challenges to immigration policies, we should at least do it for both sides.
It is possible that courts will strike down the standing provisions of the LRA. The Supreme Court has ruled (wrongly in my view) that "harm" and other standing requirements are constitutional rules that cannot be overridden by statute. If federal judges conclude that the LRA state standing rule lowers standing requirements below constitutional minimums (as defined by the courts), it might be invalidated.
Standing doctrine is vague and fuzzy enough that I'm honestly not sure what will happen if this issue gets to court. In recent years, the Supreme Court has been relatively restrictive on state standing, including in immigration cases. But the relevant precedent is far from a model of clarity.
In sum, the Laken Riley Act is unjust and likely to undermine efforts to combat serious crime. It also includes Trojan horse provisions intended to make it easier for state governments to pursue lawsuits to block various types of legal migration.
