Above Photo: A 1-year-old from El Salvador clings to his mother after she turned herself in to Border Patrol agents. John Moore / Getty
Public defenders say immigrants arrested under Trump’s “zero-tolerance” policy are being denied their due process rights.
It was just before 3 p.m. on a recent Tuesday and Magistrate Judge Barbara L. Major of the Southern District of California had been waiting all afternoon to arraign 37 people arrested for illegally entering the country. The arrests followed the Trump administration’s enactment of a new “zero-tolerance” policy, under which anyone caught crossing the border illegally—even first-time offenders—would be federally prosecuted for a misdemeanor and face a possible six months in prison. But the defendants never appeared in the San Diego courthouse that day. While processing them, the Bureau of Prisons’ computer system crashed nationwide, leaving U.S. marshals unable to transport people to court.
Quickly, federal public defenders filed writs of habeas corpus, which compel the government to produce defendants when they are scheduled to be in court. By Wednesday morning, prosecutors dropped the charges against 32 people charged with misdemeanors, after defense attorneys moved to dismiss the charges based on the delay. Standing outside the chief judge’s chambers that morning, U.S. Attorney Michael Lasater told Ryan Stitt, a trial attorney at Federal Defenders of San Diego, the government had erred in trying to rush through the prosecutions. “They should not have been booked,” he said. “It was silly to book them.”
But for public defenders representing clients being swept up under the new policy, the situation is anything but silly. When Attorney General Jeff Sessions announced the change in April, many wondered whether federal courts would be able to handle the thousands of new prosecutions without infringing on legal and due process rights. The answer, public defenders argue, is now clear. They say that some of their clients are detained in far-away facilities, are often not allowed to adequately consult with defense attorneys before appearing in court, and are being coerced into accepting plea deals just to get out of jail.
“The court has already begun to reshape itself to accommodate the increase in prosecutions, and these accommodations serve to diminish both the court and the constitutional protections accorded the accused,” wrote Reuben Camper Cahn, executive director of Federal Defenders of San Diego, in a June 4 letter to Chief Judge Barry Ted Moskowitz, first reported by the Voice of San Diego.
“It’s profoundly depressing to see people treated this way,” said Jami Ferrara, a former trial attorney with Federal Defenders, which provides defense at first appearance to anyone arrested in the district without a private attorney. Ferrara now leads the Criminal Justice Act Panel, which assigns lawyers to provide defense for poor people charged with federal crimes. These two organizations are saddled with the thousands of new cases the government has tried to push through in recent months.
“The district is in complete disarray,” Ferrara told The Appeal. Lawyers have heavy caseloads, files are often incomplete, and the courts are sometimes open late into the evening. While the maximum sentence for misdemeanor illegal entry is six months, many defendants feel compelled to plead guilty to guarantee a speedy release, opening them up to being prosecuted for felonies the next time they are caught crossing the border. A felony conviction carries the potential sentence of two years in federal prison, with the possibility of added time based on the defendant’s criminal and immigration history.
Ferrara said the government is rubber-stamping most cases with “time served” sentences, but her clients are still at risk. “We’re not getting enough discovery, and the government thinks that by just making time-served recommendations, that pretty much solves the problem. I don’t know which way this is going to go, but it’s a very disappointing time in American jurisprudence.”
Judge Major herself seemed wary of the speed at which these complaints were being presented to her for review. On the day of the computer glitch, when a Border Patrol agent presented her with 57 new complaints, Major asked if he had actually read them. When the Border Patrol agent nodded nonchalantly, Major followed up, “All of them? Because you know you’re signing them under threat of federal prosecution for perjury.”
“I don’t know which way this is going to go, but it’s a very disappointing time in American jurisprudence.”
The DOJ contends its recent computer failure had nothing to do with the zero-tolerance policy. Later that week, the U.S. Attorney’s Office dismissed another 18 cases because of delays in presenting clients in court for arraignment. The computer system was working just fine that day. Instead, according to DOJ spokeswoman Kelly Thornton, the defendants “were not cleared medically to appear in court, and therefore the United States moved to dismiss their prosecution.” Thornton added that her office is working “with the court to implement the attorney general’s zero-tolerance policy and manage the increase in cases while respecting due-process rights.”
Regardless of what causes the delays on a particular day, public defenders say these are signs of a system that has been pushed to the breaking point. As U.S. attorneys’ offices near the southern border have continued to increase prosecutions and the DOJ has allocated even more prosecutors to these districts, they say, there’s no sign that the government will be backing down—and little effort to ensure that immigrants are being treated fairly.
‘I cry nearly every day’
Federal criminal prosecutions of individuals apprehended by U.S. Customs and Border Protection (CBP) along the southwest border with Mexico jumped 30 percent in April 2018 over March figures, according to Syracuse University’s TRAC, which tracks federal prosecutions. Between January and April, criminal prosecutions jumped 60 percent, rising to 8,298 from 5,191. Still, that’s far from “zero-tolerance.” In April, only 22 percent of Border Patrol apprehensions resulted in criminal prosecutions, up just slightly from 20 percent of apprehensions in January 2018.
Overwhelmingly, public defenders say, those prosecuted for illegal entry are Central American and Mexican men whose ages range from 18 to well into their 60s. Several have asylum claims they plan to file after the federal criminal cases conclude and they are transferred to immigration courts for deportation proceedings. But many are also simply trying to rejoin their families, who are often a mix of U.S. citizens, lawful permanent residents, and undocumented individuals.
Some have crossed the border with children, who are then separated from their parents and placed in the custody of the Department of Health and Human Services. Nizario Jacinto-Carillo, 32, an immigrant who was fleeing gang violence in Guatemala with his daughter Filomena, 5, was caught by Border Patrol near the port of entry at Tecate, California, on May 16. According to a declaration provided to The Appeal by his federal public defender, they were brought to a Border Patrol station where agents took Filomena away from her father. “I do not know when I will see my daughter again,” Jacinto-Carillo said in his declaration. “I cry nearly every day missing my daughter.” With the help of his lawyer, Jacinto-Carillo found out his daughter had been taken to New York. “I do not know where New York is,” he said.
Last week, the Los Angeles Times revealed that prosecutors plan to use an expedited prosecution program, known as “Operation Streamline,” to try to charge as many border crossers as possible. Under the program, which has already been instituted in Arizona and Texas, dozens of immigrants can be arraigned, convicted, and sentenced in minutes.
For years, the judges in the Southern District of California have resisted efforts by federal prosecutors to institute “Operation Streamline” in the district. The judiciary, its justices argued, should not conform to the whims of the executive branch of the government. But at a meeting of the Criminal Case Management Committee, which was convened by the district’s chief judge, Barry Moskowitz, to address the rising caseloads, the Southern District judges reportedly acquiesced. Prosecutors want the program to start in one month, according to a defense attorney who attended the meeting, but defender groups have voiced serious concerns about the program with the court.
Meanwhile, the scene at the courthouse remains hectic: Defendants arrive in a relatively steady stream, despite the delays in processing that led to some dismissals. The rattle of chains is never far off, as the defendants shed their shackles in a hallway next to the courtroom before being led into the jury box by a phalanx of marshals.
As the judge sets bail in each illegal entry case, public defenders stress the connections these defendants have to the United States. But even if family members are able to post bail—which can reach as high as $5,000— the defendants will rarely get to stay in the United States to fight their criminal cases. Instead, they will be transferred to Immigration and Customs Enforcement custody and put in deportation proceedings. Once an immigrant is deported, his or her case is dismissed, and the bond is repaid to family members. But, as one defense attorney explained, that’s not a common outcome. For the most part, she said, families can’t make bail and the defendants languish in federal custody until they take a plea deal. Many of the defendants have prior deportations on their records, meaning that if they were to try to bring their misdemeanor cases to trial, prosecutors could file superseding indictments that would charge them with illegal re-entry, a felony, incentivizing them all the more to take quick plea deals.
As the number of immigrants held in federal criminal custody increases, the U.S. Marshal Service has had to find new places to hold immigrants, which often means sending them hundreds of miles away from their lawyers. In addition to a federal jail in San Diego, as well as two nearby privately run detention facilities, marshals have recently begun housing arrested immigrants at the Santa Ana Jail, Orange County Jail, and San Bernardino County Jail, leaving public defenders to rely on videoconferencing to speak with their clients, many of whom are facing perilous conditions in overcrowded jails.
Other immigrants in both the criminal and immigration systems are being housed at the Otay Mesa Detention Center near the border, run by the private company CoreCivic, formerly known as Corrections Corporation of America.
“The rise in enforcement has been a huge boon to corporations,” said Nicole Ramos, director of the Border Rights Project of Al Otro Lado, an organization that provides legal assistance to refugees. “These immigrants are forced into exploitative working conditions where they’re essentially coerced to work in the prison for a dollar a day.”
An ongoing class-action lawsuit filed last year by immigrants being held in detention at Otay Mesa alleges they are being paid at most $1.50 per day, or sometimes not at all, for their work as kitchen staff, janitors, barbers, and other occupations.
On May 31, immigrants detained at Otay Mesa released letters detailing their abuse in the facility. “When we ask for medical attention, they do not treat us, and many of us have pains, wounds, and the officers don’t pay attention to us and ignore us,” the letter reads. Amanda Sluss Gilchrist, a spokeswoman for CoreCivic, told The Appeal, “CoreCivic cares deeply about every person in our care. Our immigration facilities, including Otay Mesa, are monitored very closely by the government.”
“These immigrants are forced into exploitative working conditions where they’re essentially coerced to work in the prison for a dollar a day.”
From the moment of arrest, it appears, immigrants are being plunged into a system that is chaotic and disorderly. Immigrants arrested on the weekend, for instance, may have to sleep on the floor of a Border Patrol station, Stitt, the attorney at Federal Defenders, explained.
“It’s unfortunately commonplace for people to spend multiple nights at either a port of entry or an immigration station that is not equipped to handle housing people in this way,” he said. “It is routine to hear stories of people who are locked in rooms with many other people. There’s no place to sleep. The lights are on all day, there’s no hygiene products for women at times. … You sleep on a bench. You sleep on the floor if there’s no space on a bench.”
The administration’s ‘mission impossible’
The zero-tolerance policy also raises questions about whether federal prosecutors will be forced to shift resources away from prosecuting serious crimes, like human smuggling or drug trafficking, in order to handle the relentless flood of misdemeanor cases.
Writing for the Washington Post, Alan Bersin, Nate Bruggeman, and Ben Rohrbaugh, three former officials at Customs and Border Protection, warned that not only will the agency be overwhelmed by this new policy, but that U.S. attorneys’ offices will shift priorities for prosecutors. “Already handling a massive workload, including drug- and human-trafficking cases, these prosecutors focus their time and effort on cases that have the greatest impact on public safety,” the trio wrote. “The administration’s new “mission impossible” will force prosecutors to misallocate resources to economic migrants; but even then, there will not be enough resources to get the job done. In the meantime, organized crime, drug smuggling, and financial crimes will receive short shrift.”
For example, Stitt described a case he worked on two weeks ago in which a woman was arrested and charged with misdemeanor illegal entry after being found in the trunk of a car as she was being smuggled through the border.
“Typically, the government would charge the driver. Smuggling someone into the United States for financial gain, which is the reason everyone does it, carries with it a minimum three-year sentence,” Stitt told The Appeal. “In this case they prosecuted the woman in the trunk, [who had] no prior criminal history, a first-grade education, and who was just coming to work.” They did not prosecute the driver, he speculated, because the driver’s case was more complex, would require more resources, and require them to hold the person in the trunk as a witness instead of prosecuting her. “The focus goes from the driver to the passenger, because the driver had lawful permission to enter the United States. Not the passenger,” Stitt explained.
Over the past six months, as the total number of misdemeanor illegal entry prosecutions has climbed significantly, the number of human smuggling prosecutions has remained relatively steady, while prosecutions for drug trafficking have dropped precipitously, according to data on federal prosecutions in the Southern District of California obtained by The Appeal. Between November and April, prosecutions for misdemeanor illegal entry rose 65 percent. At the same time, the number of prosecutions for human smuggling rose by 10 percent, but the number of prosecutions for drug smuggling over the border dropped by nearly a third.
Kelly Thornton, spokeswoman for the U.S. Attorney’s Office for the Southern District of California, said the rise in misdemeanor prosecutions wouldn’t hamper other efforts. “As one of five Southwest border districts, immigration and narcotics trafficking are significant priorities of this office,” she wrote in an email. “The Department of Justice has given our district the necessary resources to prosecute these crimes and that’s what we are doing. Within the last six months we have received funding from the Department to hire 10 additional attorneys. “
Still, the sheer number of increased prosecutions of misdemeanor illegal entry shouldn’t be understated—in fiscal year 2017 (Oct. 1, 2016 to Sept. 30, 2017), the Southern District of California prosecuted 590 cases. During the first four months of 2018, that number had reached 777. It looks to only rise with the introduction of the expedited prosecution program.
Ferrara, the head of the Criminal Justice Act Panel, is unconvinced that this new policy will do anything to deter immigrants from attempting to enter the United States, particularly because many have deep ties to the country already.
“I saw a young man today who was pleading to a 1325 [illegal entry] and getting sentenced, who has grown up here in the United States; he has two United States citizen children who live here,” Ferrara told The Appeal. “He does not have the infrastructure or support in Mexico to set up a new life there, and everyone he knows and loves is here in the United States. That’s someone who it is going to be hard to picture them just giving up and not trying to come back and see their family. I don’t know where this exercise is going to take us, but it isn’t taking us in a humane direction.”