Absurd Justice
Laken Riley Act pits ICE against prosecutors
Every day, prosecutors push another list of defendants through criminal prosecutions. And every day judges sign off on convictions. If activists were to surround courthouses, blocking prosecutors and judges from moving the criminal legal process forward, local police would rush to arrest them. Soon there would be more defendants and more convictions.
As the world readies for round two of Trump’s presidency, the U.S. Congress is on the verge of blocking criminal prosecutions. The Laken Riley Act would force ICE to detain some unauthorized migrants charged with several crimes related to theft. Once in ICE’s hands, there would be next to no chance that they would show up for hearings in a criminal courthouse.
Criminal law in the United States is supposed to treat people as innocent until the legal process runs its course. But immigration law isn’t part of criminal law, so the “innocent until proven guilty” standard-bearer doesn’t apply. If approved by Congress, the bill would add to the list of crimes that already require immigration officials to take migrants into custody. Most of the crimes that currently require custody by immigration officials are serious—murder and rape, for example—but some low-level drug crimes and other non-violent offenses do too.
The Laken Riley Act, which was approved by the House of Representatives and is currently pending in the Senate, would add burglary, theft, larceny, or shoplifting. José Ibarra, who was convicted of killing Riley in February 2024, had previously been arrested for shoplifting. Ibarra had also been arrested for driving a scooter without a license while a child rode it without wearing a helmet. According to news reports, Ibarra had come to the United States from Venezuela only two years earlier.
By requiring immigration officials to take certain migrants into custody as soon as they are “charged with” or “arrested for” a crime related to theft, including shoplifting, the proposed law would push more people into the nation’s immigration prison system. As of December 2024, ICE detained 39,077 people on a given day. When Trump last occupied the White House, in January 2021, ICE held 15,097 people on an average day across its prison network. As supported by the House, the proposal would only apply to people who can be excluded from the United States because they entered the United States without the federal government’s permission, lied to obtain an immigration benefit, or don’t have a required visa.
Even when federal immigration law requires ICE to take custody of a person, no law bars immigration agents from ensuring that migrants appear for required court dates related to criminal prosecutions. ICE could work with prosecutors to bring defendants and witnesses to court for criminal cases. That isn’t how ICE operates. In practice, ICE does not typically transport someone in its custody to a courthouse to appear for a hearing in a criminal case. Because criminal defendants have a constitutional right to be present for their cases, ICE’s custom stops criminal cases from reaching a conclusion. No matter the evidence, a conviction is almost always off the table as soon as ICE arrests a criminal defendant.
ICE’s practice has sometimes led to tension with prosecutors. In 2009, a federal prosecutor in Minneapolis asked a judge to keep a migrant facing drug trafficking charges locked up out of fear that if the defendant was released on bail, as was common in such cases, ICE would step in to arrest and potentially deport the defendant. The prosecutor “complains it needs protection from ICE and its threat of expulsion,” the judge wrote. In another instance, prosecutors told a different federal judge – this time in Texas – that the court had to keep a migrant defendant jailed pending prosecution precisely so that ICE didn’t get its hands on him. “It is perhaps a sign of the times that the Court has to point out how absurd the Government’s position is,” wrote the judge.
In immigration policy, there is plenty of room for the absurd. A migrant living in California, for example, could get caught up in the proposed bill’s detention requirement without stealing anything because that state’s shoplifting law doesn’t require that anything be taken.
Sold as a bill that will protect the public, the Laken Riley Act reveals that, to many legislators, there is no connection between justice and legal proceedings. Like a team of activists barricading a courthouse, the bipartisan group that voted in the bill’s favor in the House embraced a proposal that would subvert the work that prosecutors do. They might wish that deportation will turn our residents into someone else’s problem. But the idea that removal solves problems is nothing more than a fantasy. Policymakers “cling to the possibility—a myth, really—that illegality says something about a person’s soul, and to the fantasy that deporting migrants who commit crime removes a problem without create a new one,” I wrote in Welcome the Wretched. That was true a year ago, when Welcome the Wretched came out, and it’s true now.