California Border District Reverses Course on a Key Component of Operation Streamline

Judges in San Diego are no longer accepting same-day pleas for illegal entry misdemeanor cases, ending a major aspect of the fast-track prosecution program.

SAN DIEGO, CA - JULY 16:  A U.S. Border Patrol agent patrols along a section of the U.S.-Mexico border fence on July 16, 2018 in San Diego, California. The entire Southwest border saw 34,114 U.S. Border Patrol apprehensions in the month of June compared with 40,338 in May.  (Photo by Mario Tama/Getty Images)
A U.S. Border Patrol agent patrols along a section of the U.S.-Mexico border fence in San Diego, Calif., on July 16, 2018. Photo: Mario Tama/Getty Images

Just two months after Operation Streamline was contentiously rolled out to the Southern District of California, the court suspended a major aspect of the fast-track prosecution program, which aims to federally prosecute and sentence people who cross the border without authorization in a matter of minutes. Judges are no longer accepting guilty pleas on the same day an individual first appears in court, marking the end of a practice that defense attorneys have characterized as “coercive” for the overwhelming pressure it places on a defendant to plead guilty before they have a chance to consider a possible defense.

The change occurred on the afternoon of September 17 in the special courtroom set aside for illegal entry misdemeanor cases, when Magistrate Judge William V. Gallo suddenly announced that the district court judges, who set policy for the Southern District of California, had decided at a lunchtime meeting that “effective immediately, there will be no same-day pleas.”

Earlier that morning, defense attorneys had met with their clients inside a converted garage in the basement of the federal building in downtown San Diego that attorneys have referred to as the “dungeon.” Many of their clients had spent several nights sleeping on the floor of Border Patrol stations and were still wearing the clothes they were arrested in.

According to defense lawyer Jami Ferrara, the head of San Diego’s Criminal Justice Act Panel, the decision came after Jan Adler, the head of the magistrate judges (who have been tasked with presiding over the illegal entry courtroom), proposed to the district court judges that the court no longer accept same-day pleas.

The magistrate judges have seen their court calendars balloon since the start of Operation Streamline in July, with misdemeanor sentencing stretching well into the evening — often extended by the objections of federal defenders, who have questioned the legality of the arrangement.

“We made a concerted effort to fight this process, and that hasn’t happened in any of the other districts where this process was instituted,” Ferrara told The Intercept.

For years, the Southern District of California had been the sole border district to hold off on the implementation of Operation Streamline, which first originated under the George W. Bush administration. But after the massive rise in prosecutions filed for misdemeanor illegal entry following Attorney General Jeff Sessions’s April announcement of the Justice Department’s new “zero tolerance” policy, the district relented and instituted the program. Problems with the expedited prosecution process quickly began to pile up.

Without much time to track down birth certificates or other official documentation, prosecutors repeatedly filed charges against minors, and in at least one instance, a judge sentenced a young Mexican woman under the age of 18. Ordinarily, minors from Mexico caught crossing the border are returned to their country as soon as possible, and the cases of those charged with more serious crimes, like importing drugs, are handled in state courts, which have greater protections for minors.

Conditions of confinement for those being prosecuted under Operation Streamline have also been an issue, as the federal government has sought to relieve overcrowding in the federal jail system by keeping those charged with misdemeanor illegal entry in the custody of Border Patrol, instead of the U.S. Marshals Service. This has resulted in dozens of people sleeping on the crowded floors of Border Patrol stations, which are poorly equipped to house individuals for long periods of time. This extended confinement has also led to allegations of abuse — in July, a Mexican citizen said a Border Patrol agent forced him to clean the agent’s truck and then shut him inside of it with the air conditioning at full blast.

On September 26, initial appearances for nearly two dozen people charged with illegal entry finished within an hour, a dramatic change from weeks before under the full version of Operation Streamline. While defendants will continue to appear for initial hearings en masse in a special courtroom, defense attorneys now have the opportunity to look into the charges against their clients and determine whether taking a plea deal would be wise. Their clients will also have the opportunity to have their bail posted or remain in the custody of the U.S. marshals.

While many plea deals offered by the U.S. Attorney’s Office have been for time served, a misdemeanor illegal entry conviction can have serious negative impacts on an individual’s future immigration status in the United States, exposing them to a possible felony charge if they attempt to re-enter the country.

According to the latest data obtained by the Transactional Records Access Clearinghouse, prosecutions for misdemeanor illegal entry in the Southern District of California skyrocketed to 928 cases in July, an 889 percent increase over the same month the previous year. Between April, when “zero tolerance” was announced, and June, the last full month before Operation Streamline was implemented, however, the number of monthly prosecutions had already risen from 153 to 882. So while Operation Streamline might now be seriously curtailed, as long as “zero tolerance” remains in full effect, prosecutions will most likely continue to reach record levels.

“The Department of Justice, to my knowledge, has not retreated from prosecuting every single 1325 [misdemeanor illegal entry] case referred to DOJ by DHS. That policy is still in effect,” said David Loy, legal director of the American Civil Liberties Union of San Diego and Imperial Counties, whose organization applauded the decision by the district court. “The federal bench in San Diego made their decision as a good faith exercise and because it was the right thing to do as a court which has the prerogative to decide how to process the charges filed by the executive branch.”

The U.S. Attorney’s Office declined to comment on the court’s decision.

Defense attorneys continue to have serious concerns with the equal protection issues generated by the existence of a separate courtroom that deals solely with misdemeanor illegal entry cases and excludes misdemeanors that involve American citizens. Still, they see the decision to end same-day pleas as a huge step back from the brink for both defendants and the court itself.

“These same-day plea deals just shouldn’t be what the court should value,” Ferrara said.

Top photo: A U.S. Border Patrol agent patrols a section of the U.S.-Mexico border fence in San Diego, Calif., on July 16, 2018.

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