Courts in the Southwest are pushed to their limits to handle all the immigration cases that come their way now — and that could get a lot worse with plans to add Border Patrol agents as part of immigration reform.
Operation Streamline, which the Tucson Sector implemented in 2008, was supposed to fast-track up to 100 prosecutions of immigrants a day.
But five years later, the program is stuck at 70 a day — some days even fewer — because there’s aren’t enough courtrooms, judges or holding space. And that’s not even taking into account nearly $350 million in sequestration cuts.
The Senate’s immigration reform bill, now awaiting action in the House, would push local Streamline cases to 210 a day.
Tripling the program would require two additional magistrate judges, courtrooms, chambers, detention space, clerks, interpreters, pretrial service officers, attorneys and security, the late Judge John Roll wrote in 2010 when an expansion was considered.
$50M a year for 5 years
The bill allocates $50 million a year for five years toward the additional expenses, but costs of the program are at least twice as much, several estimates show.
Fewer than 1 in 4 people get referred for prosecution in the Tucson Sector, apprehension data obtained by the Center for Investigative Reporting shows. A total of 120,000 people were apprehended in the sector last fiscal year — the most nationwide.
Border Patrol rarely refers for prosecution juveniles, parents traveling with children or people with certain health conditions.
And not everyone who is referred gets prosecuted. Cosme Lopez, with the U.S. Attorney’s Office in Arizona, said every case is considered individually, but court and prosecutors’ resources are a factor when making a decision.
The Arizona District Court has one of the nation’s biggest caseloads , and that only decreased slightly after a judicial emergency was declared in 2011 — when judges handled nearly 9,000 criminal and about 25,000 petty-offense cases.
Judge Roll wrote then that “the addition of what sometimes seems to be an inexhaustible number of law enforcement agents and federal prosecutors in the Tucson division has now produced a tsunami of federal felony cases,” far beyond capacity.
Nearly half of all criminal defendants and 97 percent of petty-offense defendants in the state’s federal courts are prosecuted for immigration violations.
The federal Public Defender’s Office in Tucson sends an attorney to represent Streamline clients once a week. The rest of the defendants are represented by private attorneys paid more than $100 an hour.
The Tucson office lost about 20 people to budget constraints, said Jon Sands, chief federal public defender in Arizona, and if cuts continue he might send an attorney once a month.
Judges are also stretched thin. Arizona has six vacancies, two in Tucson — one for more than three years.
“There’s only so much you can do with the resources you have,” said the chief judge for the Arizona district, Raner Collins.
“The judiciary is an equal branch of government, along with the executive and legislative branches, but it seems sometimes Congress treats it just like any other federal agency.”
Infrastructure is also a big issue. When the DeConcini court opened 13 years ago, it was designed for 90 prisoners, said David Gonzales, U.S. marshal in Arizona. But at times there have been 250 prisoners in the cellblock. About 80 percent of people detained under his jurisdiction are arrested on an immigration charge.
He’s also lost about 12 deputy U.S. marshals in Tucson within the last year and is under a hiring freeze because of sequestration and other budget cuts.
The focus of Streamline has shifted from first-time offenders to mostly people with prior illegal entries or criminal convictions, Customs and Border Protection said in an email statement. The agency declined a request for an interview or for statistics regarding the program, which had been made available in the past.
Most people prosecuted through Streamline are now charged with a misdemeanor of illegal entry or a felony of illegal re-entry after deportation, which carries a two-to-20-year sentence, depending on criminal history. The majority plead guilty to the lesser offense, punishable by up to six months — although the Senate bill would double that to one year.
As of fiscal 2012, more than 200,000 people were processed through Operation Streamline across the Southwest — about 45 percent of all immigration-related prosecutions, a Congressional Research Service report found. About 74,000 have been prosecuted through the program in Tucson since 2008.
Is it a deterrent?
To what extent Streamline deters illegal immigration is still up for debate.
Proponents, including Customs and Border Protection, point to lower recidivism rates for participants. In 2012, about 10 percent of people processed through Streamline and deported were reapprehended the same fiscal year.
Arizona Sens. Jeff Flake and John McCain both want to expand the program in Tucson and elsewhere. After a town hall meeting in Tucson Thursday, McCain said he supports Operation Streamline because it deters repeat offenders .
“That’s what Border Patrol tells me,” he said. “They say that repeat offenders who go through Streamline don’t come back.”
Flake, in an editorial board meeting with the Arizona Daily Star, said the program should be expanded because it’s been successful in Yuma, and “with any legislation, you want to take initiatives that have worked and apply them elsewhere.”
Yuma refers for prosecution about half of those it apprehends, the Center for Investigative Reporting data show, but it’s not clear how many go through Streamline. CBP wouldn’t release numbers without a Freedom of Information Act request.
Streamline defendants in Tucson meet briefly with their attorneys, give up their right to a trial, accept a plea agreement, plead guilty and get sentenced all within several hours. There is not enough time for attorneys to explain every step in the process as they would in other cases.
“Are any of you being forced to plead guilty today?” Magistrate Judge Jacqueline Rateau asked a group of defendants one day last week.
“Sí,” most of them answered after listening to the Spanish translation through their headphones.
Rateau then addressed each of them individually to make sure they understood what was happening.
“Are you a citizen of the United States?” she asked one defendant.
“Sí” he replied.
“I think all of you should have a little more time with your clients,” she told the attorneys.
It turned out the first nine defendants were mostly Central Americans being prosecuted for the first time for illegal entry. Their first language was an indigenous language, not Spanish.
Matt Lowen of the Tucson-based End Streamline Coalition called the program a costly way of deterring illegal immigration. For the most part, it doesn’t keep people from coming, especially those with strong ties to the United States.
Last week in Rateau’s courtroom, several of the day’s 69 defendants asked to be housed near Phoenix, Tucson or Napa Valley to be closer to relatives.
Grace Meng of Human Rights Watch called Streamline a self-perpetuating cycle. Once convicted of illegal entry, immigrants who attempt to re-enter the country are more likely to be prosecuted for illegal re-entry because they now have a criminal record.
An effective strategy, she said, needs to consider the motivation of offenders.
“Criminal statutes and prosecution policies that seek to deter recidivism without consideration of family ties as a motive are doomed to fail,” she said.
An unpublished study of Streamline’s effectiveness found the program deters people from crossing again in the same area, but not on other parts of the border.
“ The longer they were detained, the bigger negative impact it had on apprehensions,” said Pia Orrenius, a senior economist with the Federal Reserve Bank of Dallas and one of the study’s authors. But it was less effective as it was implemented in more sectors of the border.
The economy remains the major drive for people who cross illegally, Orrenius said.The government should weigh the costs and benefits and decide “whether there are other, cheaper ways to prevent unauthorized immigration — such as verifying the legal status of employees,” she said.
Cost remains unknown
The cost of Operation Streamline isn’t known.
Heather Williams, a former federal public defender in Tucson, estimated it costs about $96 million a year, plus costs like using the courthouse, courtroom staff, magistrates, U.S. marshals, U.S. attorneys and courtroom interpreters.
In a letter to Congress, the Judicial Committee estimated it would cost at least $37 million to hire 367 new probation and Pretrial Services workers to handle the workload under the proposed expansion.
To get control of the border there has to be some prosecution — but it should be the right kind, said Sands, the Arizona federal public defender.
“Prosecutions of coyotes, the people taking advantage of people coming across, drug traffickers, sex traffickers, ” he said.
“The best way to keep people from coming,” he said, “is to get them jobs where they are coming from.”