Measuring Prosecutorial Discretion's Effectiveness: Statistics? What Statistics?

By Dan Cadman on May 15, 2015

I have been involved in immigration programs and operations in and around government — mostly in — for almost 40 years. I can say unambiguously that the Obama White House is the least transparent administration, Democratic or Republican, that I have experienced in the whole of those nearly four decades. This is, I believe, a view shared by both sides of the spectrum where immigration controls and enforcement are concerned.

With few exceptions, journalists, scholars, interest groups, think tanks, and the like have often been rebuffed in their attempts to obtain policy and statistical information of all sorts that in prior administrations was routinely provided. The exceptions seem to be limited to a select group that can be relied on to help spin the information in the direction the administration wants. The rest of us either don't get the data, get it in such an untimely fashion as to render it useless, or (if you have the wherewithal) end up filing a Freedom of Information Act lawsuit.

The executive branch has gone to singular lengths to keep reliable data from being obtained, including "streamlining" annual statistical reports in such a way that whole segments of data are no longer available, or creating new categories that require manipulating data into strange amalgams to present a pleasing but false portrayal of effectiveness. In essence, they have dumbed-down the reports to make them meaningless for any kind of competent review or critical analysis. All of this seems to have been done with a wizened and cynical political eye.

The most recent example of misfeasance comes to us courtesy of a report from the Department of Homeland Security (DHS) Office of Inspector General (OIG), drably titled "DHS Missing Data to Strengthen its Immigration Enforcement Efforts" in classic but typical governmental understatement.

(The OIG itself seems to be undergoing a renaissance since its former longtime acting IG, a toady for the administration who was himself beset with ethical problems, was jettisoned. The new IG, John Roth, appears to be slowly trying to breathe new life into this nearly flat-lined and morally compromised office, for example by investigating allegations into the cronyistic actions of the now-deputy secretary of DHS in forcing approval of petitions for politically connected aliens, although that investigation was more tippy-toe than full frontal assault.)

The new OIG report, in a way, states the obvious: no one in government has been tracking the number and type of recipients nationwide of the crown jewel of the Obama administration's non-enforcement policies, laughingly described as "prosecutorial discretion" (even though it is applied to vast swaths of the population of 11-12 million illegal aliens, and is not so much discretion as a free pass).

Of course they haven't been keeping track! When you're presenting an airbrushed picture of this new, enlightened policy, why would you let anyone get close enough to see the warts, wrinkles, carbuncles, and scars?

The timing of the report couldn't be worse for the administration because, although prosecutorial discretion per se hasn't come under court examination (yet), it is the foundation on which many of the president's "executive action" programs are based, and which rely on that theory to give illegal aliens permits to live and work in the United States under "lawful" status. And those portions of the president's programs are the subject of a lawsuit filed by 26 states. So there is a great deal at stake in how closely anyone is permitted to look, to see whether the reality meets the high-flying rhetoric. But we already know that it doesn't, from the occasions when information has leaked out despite White House and DHS efforts to hide it — for instance with the reluctant admission that a number of illegal aliens given "lawful" status as a part of this prosecutorial discretion program in fact had criminal records that should have been discovered during any reasonable vetting process, rather than the rubber-stamping the bureaucracy has been stampeded into.

Among the absurd reasons the government gives for not having tracked the data is that it would be "too time consuming" and "that prosecutorial discretion may be exercised at various points in the removal process; therefore, multiple instances of the use of prosecutorial discretion may be recorded for the same individual." This latter argument rings false on so many levels.

For several years, DHS agencies were manipulating removals to permit Immigration and Customs Enforcement (ICE) to claim credit for Border Patrol apprehensions; this cooking of the books was steadfastly denied by at least one ICE director at the same time the president was distancing himself from the numbers by calling them "a little bit misleading". Misleading? You betcha. Seems odd now for DHS to become so fastidious about the possibility of double counts.

What's more, there is no reason that the data cannot be categorized in two ways; it is, after all, only data and amenable to being captured easily in this electronic age. Each alien who is handled by the system has unique identifiers assigned by the government, plus both biographic and biometric data assigned to him or her. It's easy enough to do a search-sort to find out how many aliens in total have been happy recipients of the government's discretionary largesse. It might also be interesting, though, to have a record of individual aliens being multiple recipients of prosecutorial discretion. I'm trying to figure out precisely how this would happen. I'm sure other researchers would also be keen to understand how. Even if personally identifying information were deleted for "privacy" reasons (although illegal aliens have no privacy rights under the federal Privacy Act), such information would be a gold mine of data to be sifted through in order to fully understand what all of these permutations of the use of discretion are.

The report logically states that without such data as an analytical tool and feedback mechanism: "DHS may not be using its significant investment in immigration enforcement as efficiently as possible [and] may also be missing opportunities to strengthen its ability to remove aliens who pose a threat to national security or public safety" and recommended that data collection policies be promulgated.

It also tells us that DHS management agreed with the recommendation, although the folks at OIG were also astute enough to note that "The department's management comments to our draft report did not include enough detail for us to determine if the planned corrective actions satisfy the intent of our report recommendation. The recommendation will remain unresolved and open until the department provides a corrective action plan describing its strategy to collect, analyze, and report data on the department's use of prosecutorial discretion, and milestones for developing and implementing the plan."

But therein lies the problem; in creating such databases, DHS officials know that any number of objective observers will have a window into the workings of programs that they would much prefer be left in the shadow, particularly with the federal court system breathing down their necks.

So what are the realistic chances of DHS adopting the OIG's recommendations in a meaningful way? You can bet it won't happen until either 1) they lose in the federal courts, in which case the data becomes less significant or, on the other hand, 2) oh, say give-or-take the last day of the administration when it doesn't matter and becomes someone else's problem.