The U.S. Border Patrol's zero-tolerance program — which dictates jail time for all illegal border crossers — may end up being a partial-tolerance operation in Arizona due to a lack of prison space, attorneys, law enforcement officers and judges.
The agency is hoping to launch Operation Streamline in January along an undisclosed designated stretch of the border by selecting 100 people a day for prosecution and jail time. Under the program, illegal entrants face 15 to 180 days in jail even if it is their first arrest.
The 100 people a day would represent about 10 percent of the average number of daily apprehensions made across the 262 miles of border in the agency's Tucson Sector, the Southwest border's busiest stretch.
And even handling that number is going to be a daunting and expensive task for the courts and criminal justice system.
Officials say they are scrambling to find enough room in detention centers, attorneys to defend and prosecute, judges to sentence and law enforcement officials to supervise and transport the border crossers.
The U.S. Marshals Office in Tucson needs a larger staff to handle and process the extra prisoners. It expects the monthly cost of housing federal prisoners to double to $22 million from $11 million, mainly because of the anticipated costs of transporting entrants to other state detention centers, said Arizona U.S. Marshal David Gonzales.
The U.S. District Court in Arizona is concerned about finding enough defense lawyers, language interpreters and clerks, said spokesman Richard Weare.
"Anytime you double the workload, it's going to have an impact," Weare said.
The U.S. Attorney's Office will be able to handle the load — but only thanks to a promised loan of four attorneys and additional clerical staff from the Department of Homeland Security. Those workers will be dedicated to handling Operation Streamline cases, said interim Arizona U.S. Attorney Daniel Knauss.
The Federal Public Defenders Office will have minimal involvement, if any, in what it deems an ill-advised program, said Heather Williams, first assistant to the federal public defender and supervisor of the Tucson office. The office has 27 attorneys, and their workloads are already maxed out, Williams said. The office hands over 40 percent of its cases to private lawyers.
These logistical hurdles have forced Border Patrol officials to push back Operation Streamline's start date to Jan. 7 from Dec. 23 and to consider scaling back the number of daily prosecutions to 40 a day from 100, Williams said.
But Robert Boatright, deputy Border Patrol chief in the Tucson Sector, said the program won't start with fewer than 100 prosecutions a day, or 700 a week, the minimum necessary for Operation Streamline to have its desired effect.
Boatright said no date has been set, but he confirmed that the agency is aiming for January.
Even though 100 people a day is only a fraction of the total apprehensions in the sector, the program will still create a significant deterrent, Boatright said.
First, the message will quickly reach smugglers and entrants and force them to find new routes. Second, the agency plans to roll out other enforcement actions in coordination with Operation Streamline, he said.
"Other things will come to bear about the same time so that the sum of all parts will have a desired effect," Boatright said, declining to give specifics.
He also declined to disclose which stretch of the Arizona border Operation Streamline will start in, though he said the agency has already decided. An announcement will be made but not yet because the Border Patrol doesn't want to give smugglers an edge, he said.
The goal remains to expand the program across the entire Tucson Sector, which stretches from the New Mexico line to the Yuma County line. In the Del Rio (Texas) and Yuma sectors, Border Patrol started Operation Streamline in designated zones and expanded to the entire sector.
At the same time, though, the agency knows that encompassing the entire Tucson Sector could mean upward of 700 prosecutions a day, which would be difficult to handle, Boatright said.
"I guarantee we're going to be able to expand it," he said. "Will we expand it the entire 262 miles of border in the Tucson Sector? That remains to be seen."
Court and criminal justice officials say it's highly unlikely they could ever prosecute all the people arrested in the sector.
Handling even half of the 1,000-plus illegal entrants arrested daily would be nearly impossible without building new facilities and adding dozens of attorneys, judges and marshals, Arizona U.S. Marshal Gonzales said. "The system and the infrastructure could just not handle that."
How it works
Under Operation Streamline, first-time offenders would be charged with a misdemeanor "entry without inspection," which carries a jail sentence of 15 to 180 days. Repeat offenders could be charged with felony re-entry and imprisoned up to two years.
Most illegal entrants from Mexico apprehended here are currently allowed to return home voluntarily unless a records check shows they have been detained repeatedly or have a criminal history. Only a small fraction of the illegal crossers are prosecuted.
Border Patrol officials say that catch-and-release system, which has been in place since the early 1970s, created an empty threat to many illegal border crossers. The deterrent of jail time has decreased illegal entrant traffic in the Del Rio and Yuma sectors and will do the same here, officials say.
"That message will get out very quickly," Boatright said. "All you have to do is whisper about immigration reform one way or the other and that information travels very fast."
Both the U.S. Marshals Office and U.S. District Court in Arizona say they are committed to assisting the Border Patrol but have logistical concerns.
Supervising the Operation Streamline arrestees and finding room at the federal courthouse and prison beds for them will put a strain on the Tucson office, said Gonzales, the Arizona marshal.
"We just need to make sure we go into it slowly and we do it right," he said.
Currently, the majority of federal prisoners are transported to detention facilities in Florence and Eloy run by the Corrections Corporation of America, and some others are taken to county jails in places such as Cochise and Maricopa counties.
But the additional prisoners will require the marshals to ship prisoners to jails in surrounding states, including New Mexico, Texas and California, Gonzales said.
"There is no other way to do it," Gonzales said. "The small amount of bed space we have available now would fill up immediately."
Court and criminal justice officials say the issues with implementation that have arisen reflect a chronic failing by Congress to fund the entire system that deals with illegal immigrants rather than just the front-end law enforcement.
Although the Border Patrol has increased its ranks in the Tucson Sector to 2,845 agents, up from 1,600 in 2002, the U.S. Attorney's Office hasn't received funding for additional attorneys or staff in four years, Arizona U.S. Attorney Knauss said.
"It's never treated as a system," Knauss said. "You have a problem, and you throw resources at the front end."
Operation Streamline was started in December 2005 in the Border Patrol's Del Rio Sector in Texas and is also being used in the Yuma and Laredo sectors.
Illegal border crossers apprehended in areas designated for zero-tolerance are prosecuted in federal court for violation of 8 USC 1325, "entry without inspection." They face jail sentences of 15 to 180 days. After serving their time, they are formally removed, or deported.