More Judges Needed to Clear Caseload Logjam in Border Courts

Judge Royal Ferguson (W.D. Tex.), photo left, appeared before the House Judiciary Subcommittee on Crime to urge the addition of new judgeships in border courts overwhelmed by drug and immigration cases. Also testifying at the hearing were DEA, Custom Service, and Texas law-enforcement representatives.

More U.S. district court judges are needed to cope with the massive increase in federal drug and immigration prosecutions on the southwest border, a federal judge told a House subcommittee last month.

"The border courts are beyond their capacity to handle their caseloads," Judge Royal Furgeson (W.D. Tex.) told the House Judiciary Subcommittee on Crime. "Washington cannot increase the crackdown on illegal drugs and immigration along the southwest border without more judges to allow these cases to be prosecuted."

Also testifying before the subcommittee were Donnie Marshall of the Department of Justice Drug Enforcement Administration; Mike Scott, chief of criminal law enforcement for the Department of Public Safety in Austin, Texas; and John Varrone, assistant commissioner, Office of Investigations, U.S. Customs Service.

Representative Lamar Smith (R-TX), chair of the Subcommittee on Crime, opened the hearing by announcing that a major focus of his subcommittee would be reducing the drug trade, especially along the southwest border, and ensuring that law-enforcement resources along the border are adequate. "The increase in trafficking along the U.S./Mexico border not only has burdened law-enforcement agencies protecting the border, but also has had a significant impact on the federal court system," Smith said. "Today courts along the border handle an unprecedented number of cases—a number that could never have been predicted five years ago. Because of this, I am concerned that prosecutors may give less attention to cases of lower level drug smugglers that would certainly be prosecuted in any other judicial district outside the southwest border. This undermines the deterrent factor and encourages repeat offenders."

The five federal district border courts—Southern District of California, District of Arizona, District of New Mexico, Western District of Texas, and Southern District of Texas—now handle 27 percent of all federal court criminal filings in the United States. The other 73 percent of federal criminal filings are divided among 89 other district courts. Drug prosecutions in the border courts more than doubled between 1994 and 2000, from 2,864 to 6,116, and immigration prosecutions increased more than seven-fold, from 1,056 to 7,613.

Unfortunately, in contrast to the caseload, judicial resources have fallen behind even as prosecutorial resources have expanded. Between 1994 and 1998, DEA personnel in the border courts surged 155 percent; Border Patrol personnel, 99 percent; INS personnel, 93 percent; and FBI personnel 37 percent. By contrast, the federal judicial officer resources in these five districts increased only 4 percent, with probation and pretrial resources increasing 19 percent.

"The average criminal caseload per district judge in the border courts is more than quadruple the average for the rest of the nation," Furgeson said. "We have, in short, reached our limits to how many criminal cases can be prosecuted in the five border courts with the current number of authorized federal judgeships. We are desperately outmanned and underfunded."

One result, according to Furgeson, is the drastically restricted number of cases that can be prosecuted. Of the 1.6 million apprehensions along the border last year, less than 1 percent were prosecuted, and Furgeson cited the reasons: the Department of Justice does not have enough prosecutors to prosecute all who enter illegally, the U.S. courts do not have enough judges to handle the ensuing cases, and the Bureau of Prisons does not have enough prison space to imprison those convicted.

"It is the goal of the federal courts to process all criminal cases in a fair, just, and expeditious manner, accord-ing to the Constitution and the Rule of Law," said Furgeson. "This goal is increasingly difficult to achieve on the border because of the sheer volume of filings. For example, while the national average of weighted filings in the United States per federal judgeship is 479, the weighted filings for Southern California are 978; for Arizona, 643; for New Mexico, 801; for Western Texas, 864; and for Southern Texas, 613."

The Judicial Conference has recommended the addition of 18 judgeships, nine permanent and nine temporary, in the border courts to meet the challenges posed by successful law-enforcement efforts along the border. The recommended judgeships are included within the total 54 judgeships the Judicial Conference has recommended Congress create to address the needs of the federal courts nationwide. The new border courts judgeships would be a combination of permanent and temporary judgeships, "in the very unlikely event," said Furgeson, "that caseloads would decrease over time."