Factory Justice?

An effort to prosecute illegal immigrants is expensive and time-consuming—but proponents say it's worthwhile

The noise from rattling chains resonated on the second floor of the Evo A. DeConcini U.S. District Courthouse in Tucson.

In the huge Special Proceedings Courtroom, 70 prisoners sat in shackles, taking up nearly every available seat on the defendants' side of the room, filling the jury box and six rows of the gallery.

"Just another day in Streamline," a U.S. marshal said as he directed a line of eight men, wearing weathered clothes, who were being moved from a holding cell into the courtroom.

Without speaking, the prisoners moved to an empty bench in the back and waited until they were called, one by one, by their attorneys to prepare for a hearing later in the day.

This scene has become a regular routine in Tucson and other district courts along the U.S.-Mexico border, where migrants apprehended by the U.S. Border Patrol are increasingly being prosecuted for illegal entry or re-entry into the United States.

The program is called Operation Streamline. Thanks to the program, the Border Patrol significantly increased the number of migrants convicted in court during a 2005 pilot program in the Del Rio sector of Texas. The operation has since expanded east to Laredo, Texas, and west to Tucson and Yuma.

Operation Streamline marks a change in direction for the Border Patrol. Now, instead of immediately deporting those who are apprehended, the federal government is establishing criminal records for many illegal immigrants—and sending repeat offenders to prison.

The costly method is intended to discourage illegal immigration—but portions of the operation have recently been ruled unlawful, and critics question its effectiveness.

Heather Williams, the assistant federal public defender in Tucson, said the program is "a huge strain on the system, and it's just not working."

The Operation Streamline workload has meant that federal public defenders and others who work at border courthouses have less time and resources for non-immigration matters.

"It's draining our time. The attention for more serious cases is greatly reduced," Williams said.

In 2008—Operation Streamline's first year at the federal court in Tucson—other types of cases moving through the system dropped sharply. According to data provided by the court clerk, marijuana cases dropped 26 percent; other drug cases, 28 percent; firearms and explosives, 21 percent; violent offenses, 17 percent; forgery and counterfeiting, 63 percent; larceny and theft, 28 percent.

Williams testified before the U.S House of Representatives Subcommittee of Commercial and Administrative Law about the effects of Streamline, calling it "one of the least successful but most costly and time-consuming ways of discouraging entries and re-entries (into the United States)."

Each weekday in the Border Patrol's Tucson Sector, agents transport 70 migrants to downtown Tucson to prosecute them. That's about 4 percent of the sector's apprehensions.

The number of migrants prosecuted in 2009 exceeded 15,000 in the Tucson sector alone. Including cases from Border Patrol's Yuma Sector, the number of cases in Arizona is nearing 30,000 annually.

Each of the 70 defendants meets with a lawyer for 15 to 30 minutes and decides whether to plead guilty or go to trial, before appearing in front of a judge.

Of the 12 to 19 lawyers who represent four or five Streamline defendants each day, two or three are federal public defenders. The others are provided through the Criminal Justice Act Panel, a group of 130 lawyers from Tucson who are hired through the court for $125 per hour, costing taxpayers more than $2 million per year.

Some of the defendants look relieved to speak with someone who understands the process of U.S. courts. Others are visibly distressed and tearfully discuss their reasons for coming across the border, often to support children or be able to pay for food and medicine.

"They usually don't have a defense, but I try to help explain their tragic circumstances to the judge, and to help them understand the legal reality they face when they enter this country without permission," said Joel Parris, a federal public defender in Tucson for 17 years. "It's challenging, because often, they have little or no education, and sometimes there's a linguistic barrier."

After a short meeting with their lawyer, those facing prison may meet with a representative from the Mexican consulate who will contact their family members back home.

They are all moved in groups back down to the crowded holding cell until 1:30 p.m., when the defendants are moved back to the courtroom for a hearing.

One by one, their names and case numbers are called, and one by one, they respond with, "Presente."

Each lawyer is asked by the judge if they have had significant time to meet with their clients on an individual basis, and whether all of their clients will be pleading guilty. The judge then formally explains the charges, rights and consequences for a guilty plea through a series of statements, translated through headphones worn by each defendant. After each statement, they are asked to stand if any of them do not understand.

Prior to a decision made last December by the U.S. Court of Appeals for the 9th Circuit, the defendants were asked further questions en masse, pleading in groups. Although this method was effective at prosecuting a large number of cases quickly, the shortcuts don't comply with procedural rules, the court ruled.

Last December, just days after the court of appeals decision, Sen. Jon Kyl, a strong supporter of Streamline, asked Secretary of Homeland Security Janet Napolitano during a congressional hearing about plans to expand the program.

"I support Operation Streamline. I think it's effective," Napolitano said. "I think, with respect to the Tucson sector, which is by a magnitude the largest sector that we have, that provides some logistical difficulties. ... We've had to be working now down there in terms of how we're going to operationally address the Court of Appeals concerns so we can continue building Streamline in the Tucson sector."

Dennis Burke, U.S. attorney for the District of Arizona and the person responsible for prosecution of Streamline cases, said that while the decision would mean adjustments, the hearings would continue.

"While changes will have to be made to some change-of-plea proceedings to comply with the 9th Circuit's decision, we are confident that the decision will not adversely impact our ability to prosecute individuals who violate the laws of the United States," he said.

After group questioning, small groups of defendants and their lawyers are called to five microphones set up in front of the bench. Each defendant is asked by the judge if they understand that they are giving up their rights to a trial and are pleading guilty by their free will.

Although some hesitate and whisper with their lawyer, on one recent day, they all responded, "Si." Then the judge asks each lawyer if they felt their clients were competent enough for trial. Each said yes.

But Williams said she has concerns about the mental state of some of the Streamline clients.

"Legally, someone has to be competent during a hearing. ... If someone is dehydrated and famished, they may not be thinking clearly," Williams said. "Our concern is that they might not always be competent, whether it be due to medical conditions or the lack of rest, food and water."

Williams said she believes some defendants are afraid to speak up at that point in the hearing.

"There's a stigma associated with speaking up, because it slows down the process, and people may fear that they'll appear stupid," she said. "We are concerned that, even with some of the changes magistrates have made to the proceedings, there are still violations of the rights to effective assistance of counsel and due process."

After pleading, the judge explained to the defendants the philosophy behind Streamline.

"You didn't have a criminal record before today. Now, you do," said the judge, warning about consequences they may face if caught again.

Roughly two-thirds of Streamline defendants have no previous official criminal record; they are taken back to Mexico shortly after their hearing, now with a criminal record in the United States.

The potential consequences do not keep some from returning to the United States. At a recent hearing, men from Mexico and Guatemala, caught by Border Patrol near Douglas, were back in court after pleading guilty in the same courtroom months earlier.

These defendants are charged with felony re-entry after deportation, punishable by two to 20 years in prison. Because of the high volume of arrests, most so-called "flip-flop" defendants are offered plea deals. They can plead guilty to a lesser illegal-entry charge, and their sentences range from 30 days to six months in prison.

Housing those convicted in Streamline costs taxpayers an estimated $7 million to $10 million per month, according to data from the U.S. Department of Justice.

Border Patrol officials say the program is working. From 2007 to 2008, apprehensions by Border Patrol in the Tucson Sector dropped by 60,543, or 16 percent.

"The success is due to more manpower, infrastructure, technology and several impact programs, one of them being Operation Streamline," said Tucson Sector spokesman Mario Escalante. "It is a layered approach to successfully placing the needed resources in the areas where the traffic patterns shift to."

Williams disagreed.

"The economy has been (discouraging entrants)," Williams said.

"When any of us is in law school, we get into thinking we're actually going make a difference. Now, two days every two weeks, each of us is stuck in factory justice."

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