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Practical Solutions for Immigrants and America

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Kangaroo Court

June 30, 2009 - Posted by Lena Graber


Photo by Natmandu



Since 2005, the Border Patrol has been conducting criminal prosecutions for all border-crossers who enter without inspection—even first-time offenders—under the assumption that jail time will increase deterrence.  This initiative began in late 2005 under the name “Operation Streamline in the Del Rio, Texas sector, and has been expanded to Yuma, Tucson, Laredo, El Paso, and Rio Grande Valley sectors. 


Prior to Operation Streamline, undocumented border crossers, if caught, were generally detained and removed to their home country, but were not prosecuted for a crime. Now, under this program, those who are caught making a first entry are prosecuted for the misdemeanor of “illegal entry,” and sentenced to up to six months in prison.  Those who reenter after deportation may be prosecuted for a felony punishable by up to 20 years in prison.


What is “streamlined” in Operation Streamline is due process.  While defendants facing criminal charges (as opposed to immigration violations) have a constitutional right to representation, there are not enough defense attorneys to serve the large numbers of arrestees.  Nevertheless, these cases are being pushed through the system in two days or less.  After completing their prison term, these individuals are deported, now with a criminal record.


Here is what due process looks like when prosecution is done in volume.


June 18, 2009. Tucson, Arizona.  Courtroom 2A in United States District Court for the District of Arizona is full of people.  About 75 immigrants sit shoulder to shoulder in rows on the left, wearing shackles and handcuffs hooked to their own chain belts.  The shackles jingle almost constantly throughout the proceedings.  Nearly all of them have headphones to hear the court interpreter.  A dozen or so attorneys, one for every five or six defendants, sit scattered throughout the courtroom.  These attorneys have likely met with each of their clients for less than 30 minutes that morning or the day before.


Two women behind me in the public seats have brought the birth certificate of one of the detainees, as well as any other documents they could find, to prove he is a U.S. Citizen.  When they bring these to the attorney and he raises it with the judge, she bumps that case up to the beginning of the proceedings.  The government attorney asks to dismiss the prosecution with prejudice, as the detainee has a claim to citizenship. 


The attorney tells the two women that, even with the birth certificate, the man won’t be released.  Instead, he will go before an immigration judge to prove his citizenship in immigration court, likely not in Tucson but in Eloy, where the detention center is, over an hour’s drive away. 


I think, This U.S. Citizen is being jailed and forced to prove himself in court before he will be released to go on with his life.  Why?  Because he lives near the border and he is not white.


The judge proceeds with a roll call of the other 75 or so prisoners: 9 women and about 65 men, represented by about 14 attorneys.  All of these people have ostensibly agreed to plead guilty in exchange for the government’s dismissal of a felony charge.


She then continues with procedural rights, addressing the entire group at once:  “You each have the right to an attorney to defend you.  Has anyone not had time to meet with their attorney?  If you have not, please stand.”


Silence.  No one stands. 


Is this a question of accuracy or a test of bravery?  Has any of these tired and confused immigrants ever stood up and claimed that the judge seated above them is wrong, and they haven’t had enough time?


The judge says: “Let the record show that no one is standing.”


“If you have been threatened or forced to plead guilty, please stand.”


No one stands.


“Let the record show that no one is standing.”


“This conviction will always remain on your record, and you will be formally deported.  If you are found in United States again without authorization you will be charged with a felony and face years in prison.  If you do not understand, please stand.”


No one stands.


“Let the record show that no one is standing.”


The judge states for the record: “Written plea agreements have been signed by all prisoners.”  She explains that they have a right to a trial, with the opportunity to defend themselves and confront evidence offered against them.


One by one, the judge asks each prisoner if they understand their right to a trial and if they agree to waive it. 


The second prisoner says no, he doesn’t understand.  The judge repeats her previous explanation, but does not provide further elaboration in non-legal language.  Eventually it is discovered that this prisoner’s headphones do not operate properly and he has not followed any of the proceedings thus far.  The judge tells him to sit to the side.  She will repeat the explanations with him at the end.


No other prisoners say they have not understood.


After having all the prisoners say , and , to whether they understand their right to trial and agree to waive it, the judge addresses the attorneys as a group.  “Do you believe your clients are competent to waive this right and have had enough time to consider their rights.” 


The attorneys say “yes” in unison.


One by one, the judge states that each prisoner is charged with unlawfully entering the United States and asks how they plead.


Culpable.”  Guilty.


The judge states that all the prisoners pled knowingly, competently, and without coercion.


With legal rights conceded, the prisoners now face criminal sentencing and deportation.


Wholesale justice.  These show trials are just one more way in which the failure to fix our broken immigration system is eroding other aspects of our society.  With Operation Streamline, the Bush Administration decided to throw prosecutorial resources into the prosecution of migrants coming here to find work.  What are the opportunity costs?  Heather Williams, first assistant to the federal public defender of Arizona, put it this way: Each day her office's lawyers spend on misdemeanor border-crossing cases, she said, "they're not talking about a drug case, a sex crime, a murder, assault or any number of white-collar cases—and the same is obviously true of the prosecutors."  Immigration cases now represent more than 50% of all federal prosecutions. 


Congress must take up comprehensive immigration reform and get it done.  We need to give people who are coming here to work a work permit, not a jail sentence.  Until we do, the theater of the absurd that played out in Tucson on June 18 will be repeated, day after day, all along the Southwest border.


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