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July 2008

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This article is in the news archives --- for current news go to the Third Branch News.


Federal Courts Hit Hard by Increased Law Enforcement on Border

Defendants Charged in the Border District Courts and Courts Affected.

Related Video:
Crisis On The Border, 2006.

The five federal trial courts along the nation’s southwest border, for years coping with bulging criminal dockets, are feeling the impact of newly stepped-up enforcement of immigration laws.

“The surge in new immigration cases brought by the Department of Justice . . . is increasing the caseload of the federal judges along the border—especially the magistrate judges—and the need for additional court staff, official court interpreters, defense lawyers, and courtroom space,” states a new Administrative Office report to Congress.

Financial resources are not currently a problem. “Thanks to help from Congress in the past two years, the Judiciary is in a financial position to respond promptly to additional resource needs,” the report said. However, other obstacles to such a response have arisen.

“The federal courts have very limited control over the nature and the volume of their caseloads,” the report noted. “When the Department of Justice files a criminal case, it gives rise to a series of court proceedings and events in the courts that require both the attention of judicial personnel—judges, district clerk’s office personnel, pretrial services and probation officers, court reporters, court interpreters, and federal defenders—and the expenditure of funds.”

The report added: “The Judiciary is responding broadly and promptly to the needs of the courts flowing from Operation Streamline II and other recent prosecution initiatives. Short-term caseload surges can and are being addressed effectively by redeploying existing judges and court staff on a temporary basis, borrowing judges from other districts, or recalling retired magistrate judges. But as stepped-up law enforcement and caseload increases continue, more permanent measures need to be taken.”

The report said that the 2009 national judgeship survey is underway, and that the five southwest border courts have submitted requests for 14 additional district judgeships. In addition, several of the courts have asked, or are considering requests, for additional magistrate judge positions.

Additional deputy clerks, probation and pretrial services officers, and court interpreters also have been requested, and federal defender offices along the border will need more attorneys and other resources.

But courts may not be able to fill positions quickly with qualified and capable candidates. “Many positions require special skills and training—especially probation and pretrial services officers, information technology staff, official court reporters, and official staff interpreters. The local labor pool is not sufficient at each location along the border to meet the demand, and it is difficult to persuade candidates from other parts of the country or state to relocate to a border location,” the report said. Recruitment and retention problems are exacerbated “because many employees at border locations are experiencing burnout due to the nature and sheer volume of the work.”

One resource problem in particular is “much more difficult to resolve—the shortage of courthouse and detention facilities at several locations along the border,” the report said. “There are simply not enough jail beds, holding cells, courtrooms, and related court facilities along the border to handle all the cases that the government would like to prosecute under Operation Streamline II and other initiatives. New courthouses are under construction at El Paso, Texas and Las Cruces, New Mexico, but the new courthouse at San Diego is on hold, and additional court facilities are needed at Yuma, Arizona.”

The judicial districts along the 1,989 mile border the United States shares with Mexico—Arizona, the Southern District of California, New Mexico, and the Southern and Western Districts of Texas—have experienced explosive growth in the number of criminal case filings since the mid-1990s. While criminal case filings grew by 27 percent in the 94 district courts nationwide, they grew by 172 percent in the five southwest border districts.

Two categories of crimes dominate those courts’ dockets—drugs and immigration. Together, they accounted for more than 82 percent of the offenses charged (other than misdemeanors) in 2007. By comparison, drug and immigration cases accounted for 43 percent of the criminal caseload in the 89 other district courts.

Virtually all drug cases are charged as serious crimes—felonies punishable by long prison terms. Immigration offenses, however, may be treated differently, and are charged as felonies if they involve illegal re-entry into the country after deportation, the smuggling of illegal immigrants, or illegal immigrants with prior criminal records. Felony cases must be heard and sentenced by district judges, although magistrate judges conduct various initial proceedings in them.

Most immigration cases now in federal courts involve the unauthorized entry into the United States, and are charged as misdemeanors, punishable by no more than six months’ imprisonment. These cases may be heard and disposed of by magistrate judges, and it is common along the southwest border for government prosecutors to charge many defendants in the same case for en masse processing.

Historically, the overwhelming majority of persons entering the country illegally, particularly those coming only to seek employment, have not been charged criminally. A person who entered the United States illegally but had no other criminal charge pending typically was “voluntarily returned” to Mexico more than a dozen times before facing the charge of illegal entry. Some did not get into federal court until they had amassed 60 voluntary returns.

Some recent law enforcement initiatives have changed that practice. One such initiative, Operation Streamline II, is designed to handle a substantially increased volume of immigration cases in expedited fashion.

Launched in late 2005 in the Del Rio sector of the border in the Western District of Texas, Operation Streamline II was intended to deter illegal entry. The initiative recently was introduced in Tucson, Arizona, the busiest sector along the southwest border.

Under it, virtually all persons apprehended for an unauthorized entry into the country face criminal charges, most often misdemeanor offenses rather than felonies. The cases are prosecuted by Border Patrol attorneys who serve as special assistant U.S. attorneys. They ask the courts to impose a jail term on each apprehended illegal immigrant while simultaneously initiating deportation proceedings.

A misdemeanor charge punishable by up to six months imprisonment, unlike a felony charge, carries no requirement for indictment by a grand jury and no right to a trial before a district judge. Most defendants plead guilty because the evidence against them for being in the country without authority is compelling.

Magistrate judges preside over these cases, and they may in some circumstances combine the initial appearance, arraignment, plea acceptance, and sentencing into a single courtroom proceeding. The judge also must ensure that due process is observed, that each defendant is treated with dignity, receives a competent lawyer’s advice, understands the nature of the proceeding, and that each guilty plea is made knowingly and voluntarily.

Any defendant who wishes to plead not guilty or assert a right is removed from the expedited process and put on the regular prosecution track.

District of Arizona

In Arizona, two thirds of the district court’s criminal docket arises in Tucson. The district’s criminal caseload has grown by 154 percent since 1994, and is one of the highest in the nation. (The five district judges at Tucson presided over a per-judge average of 540 sentence proceedings in 2007, six times the national average.)

The Tucson sector—262 miles of border—is known as the nation’s major corridor for marijuana smuggling. Immigration-related offenses loom large as well. In fiscal year 2007, Border Patrol agents arrested 378,000 people in the sector for being in the country illegally. Fewer than one-half of 1 percent (.005) of those persons were actually prosecuted.

The relatively low percentage of prosecutions appeared to have been the product of a temporary shortage of assistant U.S. attorneys in the U.S. attorney’s Tucson office, which now anticipates bringing at least an additional 40 felony cases per month. And Operation Streamline II petty offense cases are being prosecuted by Border Patrol lawyers on loan.

“Operation Streamline II began in the Yuma sector in December 2006 and in the Tucson sector in January 2008,” the AO report said. “The Border Patrol has proposed filing 26,000 petty and misdemeanor offenses a year in the Tucson division at this time, or 100 per work day added to the court’s normal daily docket. Ultimately, the goal of the Border Patrol is to prosecute an additional 700 defendants a week, or 36,000 new cases a year.”

Those numbers are expected to exacerbate serious space limitations that already exist in Tucson and Yuma. The AO report said: “The court needs additional resources to handle the surge of additional cases that the U.S. attorney is now filing in Tucson and Yuma.”

Southern District of California

Felony criminal filings per judgeship in the Southern District of California are among the nation’s highest, having grown by 154 percent between 1994 and 2007. In 2007, prosecutions rose from 3,180 to 3,853, and the increase continues in 2008.

A program akin to Operation Streamline II, called Operation Arizona Denial, is in place in the eastern-most 10-mile stretch of the district. First-time illegal entrants with no prior criminal history who are apprehended by agents of the Yuma Sector of the Border Patrol are brought to Yuma, Arizona, and prosecuted there, rather than in the Southern District of California, for misdemeanor violations.

Because of a lack of jail space, the U.S. Marshals Service currently houses in Arizona about 200 defendants who have cases pending in the Southern District of California. “This presents difficult logistical problems for the local marshals in having to continuously move defendants back and forth between the holding facilities and the courthouse,” the AO report said.

District of New Mexico

By the end of fiscal year 2008, the Border Patrol is expected to have increased its staff in New Mexico from 1,170 to 1,702—resulting in 170 more arrested individuals arriving each week at the federal courthouse in Las Cruces. That’s a 100 percent increase over FY 2007. The vast majority of the increase in arrests will be for the misdemeanor of illegal entry.

In New Mexico, Operation Streamline II is known as Operation Lock Down. Before that initiative began earlier this year, magistrate judges in Las Cruces had disposed of about 150 misdemeanor offenses per month, in addition to handling a heavy caseload of preliminary hearings in felony cases. The misdemeanor caseload has doubled under Operation Lock Down, and the Border Patrol has requested that they handle an additional 180 misdemeanors each month.

To accommodate the increased caseload, the court may have to transfer more felony cases to Albuquerque. In 2007, the court transferred about 600 felony cases from Las Cruces after initial appearances there because of a lack of courtroom space in Las Cruces.

The increase in misdemeanor cases will continue to have a major impact on pretrial services officers. Currently, an officer typically spends about 2½ hours each day in court for initial appearances, preliminary hearings, pleas and sentencings before magistrate judges. That amount of time could easily double.

Southern District of Texas

While judges in Houston carry a large and complex caseload of civil cases, the great majority of the court’s criminal cases are filed in Laredo, McAllen, Brownsville, and Corpus Christi. The district has 14 magistrate judges—five in Houston, one in Galveston, and two each in Corpus Christi, Laredo, Brownsville, and McAllen.

Operation Streamline II began in Laredo in November 2007, when the two magistrate judges there typically handled 90 misdemeanor immigration cases a week. Now they are handling up to 400 a week. Because the court’s heavy felony caseload at Laredo has not declined, those magistrate judges also have had a substantial workload of preliminary proceedings in felony cases.

The clerk of court will need to increase staff to support the workload resulting from Operation Streamline II. It is estimated that for every additional 600 misdemeanor cases filed per month, one additional deputy clerk position will have to be allocated to support the work of the magistrate judges.

Pretrial services and probation officers also have felt the impact, not only in Laredo but also in Brownsville and McAllen, where felony prosecutions have increased. For example, pretrial services investigations increased by 19 percent in Brownsville and by 29 percent in McAllen in 2007, compared to a district-wide increase of 7 percent.

Western District of Texas

Criminal defendant filings peaked in 2007, when they were 238 percent higher than in 1994. The two divisions directly on the border—El Paso and Del Rio—accounted for two-thirds of the district’s felony criminal filings.

Operation Streamline II was launched in late 2005 on a one-mile stretch of the border near Eagle Pass in the Border Patrol’s Del Rio Sector, and was later expanded to cover the entire 200-mile Del Rio Sector of the border. The two magistrate judges in Del Rio initially saw their misdemeanor immigration caseload jump 350 percent. But after more than two years of the initiative, apprehensions and prosecutions have decreased significantly, “due in large part to the success and deterrent effect that increased law enforcement activity by the Border Patrol has had.”

Operation Streamline II was initiated in El Paso last February under the name Operation No Pass. Space is very limited in the federal courthouse in El Paso, but a new state-of-the-art courthouse is expected to be completed by May 2009.