Can legal system handle new zero-tolerance crackdown on illegal border crossings?
By Kate Morrissey and Kristina Davis
The San Diego Union-Tribune
May 12, 2018
As the U.S. Attorney’s Office began a crackdown on illegal border crossings this past week, many worried that the already-burdened federal court system would fracture if every person caught crossing in San Diego were charged over the course of a year, with hundreds of millions of dollars in extra detention costs alone.
With other sections of the border seeing much higher numbers of illegal crossings and overcrowded jails adding long-distance transportation costs, implementing a zero-tolerance policy for illegal crossings along the southwest border comes with a hefty price tag.
U.S. Attorney General Jeff Sessions promised at San Diego’s Friendship Park on Monday that, going forward, the Department of Justice and Department of Homeland Security would work together to do just that, prosecute every person who illegally enters the U.S. along the southwest border.
“If you cross this border unlawfully, then we will prosecute you,” Sessions said in his news conference at the U.S.-Mexico border. “It’s that simple.”
But is it?
“The system is going to buckle, and it’s very expensive,” said Jeremy Warren, a defense attorney in San Diego.
For federal public defenders in San Diego, the first week of the new zero-tolerance policy was rough, said Reuben Cahn, the executive director of the Federal Defenders of San Diego. Attorneys struggled to meet with clients because most are being held hours away due to lack of local detention bed space.
“This is not being implemented smoothly to say the least,” Cahn said.
Prosecutions of illegal entry — a misdemeanor — in San Diego and Imperial counties have ranged widely over the last decade, with 1,511 cases filed in 2008 and eight in 2013, according to the U.S. Attorney’s Office. Prosecutors have instead traditionally focused more on felony charges against those who re-enter the country, particularly those with a criminal record or a history of numerous illegal crossings.
In the first week of the new policy, the U.S. Attorney’s Office filed more than 120 cases for misdemeanor illegal entry or felony re-entry, up from roughly 98 cases last week and about 54 the week prior. While greater than usual, that’s still significantly less than what it would take to charge every person who attempted to enter the U.S. undetected.
The U.S. Attorney’s Office filed roughly 276 cases charging either illegal entry or re-entry in April, according to an analysis by the San Diego Union-Tribune. Border Patrol in the San Diego and El Centro sectors apprehended 6,439 people that month, according to Customs and Border Protection.
If the federal government had prosecuted every person caught crossing the border illegally into California in April, attorneys for the Southern District of California would have had to file 6,163 more cases than they did.
That’s more than 300 extra cases per business day.
In reality, the U.S. Attorney’s Office in San Diego will not process everyone. In conversations with the court, the office signaled it would likely file an additional 100 cases per week from San Diego and 50 from El Centro to implement the new policy, according to Cahn.
The U.S. Attorney’s Office declined to discuss the new policy this past week.
Even that extra 600 cases per month may place a huge burden on the system.
Sessions sent 35 extra prosecutors to the southwest border to bolster resources in U.S. Attorney’s Offices there. Eight of those prosecutors will work in California.
The Southern District of California will need more than prosecutors to achieve the attorney general’s goal.
The U.S. Marshals Service will have to find bed space to hold those charged with illegal entry or illegal re-entry while they wait for hearings and sentencing, which typically takes between two weeks and a month for those who take plea deals and “fast track” their cases. Because bed space for federal prisoners in San Diego is already at capacity, the Marshals Service plans to hold additional prisoners charged under the new policy in jails in Santa Ana.
The Santa Ana City Jail charges the Marshals Service $105 per prisoner per day and has a maximum capacity of 375. On Wednesday, the jail held 356 people for the Marshals.
Based on that daily rate, it would have cost the Marshals between $9 million and $16 million to detain the people who crossed the border illegally in April and were not prosecuted, depending on how long they were held. That does not include costs to transport them between Santa Ana and San Diego for court appearances.
Another wrinkle: The U.S. 9th Circuit Court of Appeals ruled last year that defendants shouldn’t appear in shackles in court for pretrial hearings, which means that the Marshals have to staff more security per prisoner for court appearances. Adding more people per day to keep cases moving forward will further strain the agency’s staffing resources.
“The Marshals have been in close communication with Justice Department leadership, U.S. attorneys and staff to ensure resources on the southwest border are focused in a manner that allows uninterrupted execution of our mission while fulfilling our responsibilities mandated by the courts,” said Lynne Donahue, spokeswoman for the U.S. Marshals Service.
Beyond detention costs, judges will have to hear the cases, and defense attorneys will have to represent the unauthorized immigrants, with the pro bono Federal Defenders likely picking up the majority of that work.
The district, which serves both San Diego and Imperial counties, has 20 full-time active judges — a combination of district and magistrate seats — plus four vacancies. However, there are also nine judges on senior or part-time status who help with the caseload.
To add more full-time district judge positions requires an act of Congress, while the number of magistrates is determined by the Judicial Conference of the United States. District judges are appointed by the President.
Defense attorneys are concerned that the influx of cases will clog a system that they say was already working at capacity, and they worry that the result will negatively affect due process rights granted in the Constitution to anyone charged with a crime.
Federal Defender Cahn has made requests to the court to help attorneys have better access to clients and is waiting to hear the court’s decision.
“Lawyers have to have reasonable access to their clients and vice versa,” Cahn said. “You can’t respresent somebody unless you can develop a relationship of trust and confidence.”
The Federal Defenders have also seen asylum seekers come through the system this week, part of the policy change. Previously, asylum seekers who cross illegally rather than present themselves at a port of entry would not have been charged and would instead go to immigration detention to begin the process of requesting protection from their home country. Now they will go through the criminal court process before going to immigration court, which follows an administrative law process.
The attorneys have also seen people charged with illegal entry this week who were separated from their children, part of the policy that has drawn much criticism from immigrant rights advocates. Cahn said it can be difficult for attorneys to figure out the children’s location to be able to tell clients how their children are doing.
For border crossers who receive sentences greater than time served, the Bureau of Prisons will transport them to one of its prisons and detain them.
For the misdemeanor illegal entry charge, a Union-Tribune analysis showed that in April, sentences were not generally higher than three months though those sentences can go up to six months. For the illegal re-entry felony charge, sentences can be several years long or more, depending on what other convictions the person has on record.
The potential for more border crossers to serve prison sentences also translates into more money. The cost to hold someone in custody through the Bureau of Prisons in fiscal 2015 ranged from $63.35 per person per day to $184.74, according to a bureau document. Holding someone for a three-month sentence would cost between $5,700 and just over $16,600.
The bureau currently has 183,755 federal inmates, according to its website. Almost half of the prisoners are serving time for drug-related crimes. About seven percent are there for immigration-related sentences.
Peter Nunez, a former U.S. attorney in San Diego who supports stricter immigration enforcement at the border, said that what matters to him is the conviction, not the length of the sentence.
“The whole point of criminal law generally is deterrence,” Nunez said. “Once you start prosecuting people for entering illegally, that will have some additional deterrent effect that I think will be huge in the long run. It puts a kibosh on any future attempt to legally immigrate to the U.S.”
Studies on the issue have backed up that notion, although migrants’ motivations tend to be a factor. Mexicans coming to the U.S. for economic reasons are more likely to be deterred by prosecution than Central Americans who are fleeing crime and political instability, according to a 2017 study by the Migration Policy Institute.
Border areas like Yuma, Ariz., have taken the zero-tolerance approach for years, which has contributed to record decreases in border arrests.
Nunez said the biggest challenges for implementing the new policy would be bed space and U.S. Marshals resources, but that the U.S. Attorney’s Office should be able to handle the caseload. He advocated for implementing court policies that would allow a two-day turnaround on cases.
“The quicker you can dispose of the case, you reduce the impact of that logistical problem,” Nunez said.
In other parts of the border, a program called Operation Streamline has fast-tracked illegal re-entry cases in Arizona and Texas for years by allowing quick plea deals to misdemeanor illegal entry charges with less jail time than the re-entry felony counterpart. Civil rights advocates have criticized that program as unconstitutional for moving cases through the system so quickly that defense attorneys don't have time to have a full meeting with their clients.
Guadalupe Valencia, a criminal defense attorney in San Diego, said he doesn’t think ramping up prosecutions will keep people from crossing the border because it doesn’t address why they are coming.
“You don’t solve problems with the criminal justice system,” Valencia said. “It didn’t work with the war on drugs, and it’s never going to work on immigration. The way to solve it is have people sit down and dicuss it and try to come up with real immigration reform.”
He predicted that as long as people are able to get work in the U.S. without authorization, they will take the risk of jail time and continue to come.
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