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Operation Streamline a Waste of Taxpayer Dollars Says Judge

February 11, 2010 - Posted by Mario Moreno

Last week, U.S. District Judge Sam Sparks decided he had had enough.  The three defendants in his Austin, Texas, courtroom, prosecuted under 8 U.S.C. § 1326 for illegal re-entry into the United States, with no other criminal history, had already cost U.S. taxpayers more than $13,000 in jail expenses, instead of having been removed to their home countries through the immigration system.  This tab did not include the costs associated with their prosecutions, such as courtroom personnel, U.S. Marshals, and lawyers.

In Judge Sparks' district, the Western District of Texas, prosecutions based on immigration crimes constitute more than 80% of the federal criminal docket.  The large majority of defendants facing petty immigration prosecutions are simply migrants who have crossed the border illegally to work or reunite with family; very few of them have any criminal history. It's no wonder the Judge was fed up.  Lambasting the U.S. Attorney's office for insisting on clogging the dockets with these low-level prosecutions, Judge Sparks ordered the prosecutors to state specific substantive reasons for all such prosecutions in his court in the future. 

How did a U.S. District Judge end up giving orders on immigration policy?  These prosecutions are a result of Operation Streamline, a multi-agency program launched in Texas in 2005, that includes federal criminal prosecution and jail time for all unlawful border crossers, rather than sending them through the immigration courts.  Because Operation Streamline sweeps in so many people, courts in Tucson and Del Rio have resorted to holding en masse hearings and sentencings, with up to 80 defendants, sometimes defended by as few as one or two attorneys, prosecuted in the space of a couple hours.  In December, the Ninth Circuit Court of Appeals ruled that the proceedings in Tucson violated federal rules, and forced the courts to slow down.  Still, total prosecutions have continued at record levels.

As a result of Operation Streamline, federal courts, prosecutors, defenders, and U.S. Marshals along the southwest border have experienced skyrocketing workloads and serious strains on their resources, as recently reported by the Warren Institute at U.C. Berkeley.  The Warren Institute report questions the constitutionality of en masse proceedings, and also challenges the claimed deterrent effects of Operation Streamline, observing that illegal entries have decreased all along the border because of the economy, even in jurisdictions where Operation Streamline is not in effect.

Immigration prosecutions now constitute more than half of all federal prosecutions nationwide.  Between 2003 and 2008, while immigration cases increased dramatically, other types of prosecutions, from drug smuggling to white-collar crime to weapons prosecutions, fell significantly.  Almost two thirds of immigration prosecutions in 2009 were of first-time illegal entry cases.  Judge Sparks remarked in his order that "The United States Attorney has been specifically requested for at least a two-year period to be more careful to screen the illegal entry or re-entry cases for prosecution and only prosecute those with meaningful criminal records."

"The expenses of prosecuting illegal entry and re-entry cases (rather than deportation) on aliens without any significant criminal record is simply mind boggling," Judge Sparks wroteAs Te-Ping Chen, a journalist who covers criminal justice issues commented, "It's a pretty bizarre system that decides to punish people for entering the United States by … making them stay in the United States, in jail -- and on the taxpayer's dime, as well."

Of course, this wasteful application of the criminal justice system would not even be an issue if Congress acted to update our immigration system so that there were more legal pathways to come to the U.S.  While we are waiting for a more fundamental change to the immigration laws, Congress should, as it considers appropriations for Fiscal Year 2011, look at cutting back on Operation Streamline and saving the taxpayers some money.

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