U.S. Attorney May Spend Less Time Prosecuting Illegal Aliens

U.S. Atty. Peter Nunez, frustrated by prosecutors’ limited impact on the flow of illegal aliens into Southern California, said Tuesday he is considering policy changes that would cut back on the manpower his office devotes to immigration offenses.

The policy revision, some form of which is likely to be implemented within a month, would reduce the number of suspects indicted on felony charges for smuggling aliens into the United States. Instead, the suspects would be charged with misdemeanors--reducing paper work and court time for federal prosecutors without allowing criminals to go unpunished, Nunez said in an interview.

“What we’re trying to do is conserve our prosecutorial resources, because we just don’t have enough people to do all the work we have,” said Nunez, the top federal law enforcement officer in the nation’s busiest border-crossing zone.

Border Patrol officials, who have been consulted on the proposed changes, say they have no objections, because offenders will continue to be prosecuted. The new policy would affect about 300 to 350 of the 4,000 immigration-related cases filed by Nunez’s office each year. Immigration cases account for a third of the office’s work.

Federal Public Defender Judy Clarke, meanwhile, said the move appeared to be an acknowledgement by prosecutors of the enormous scope of illegal immigration.

Such immigration “is an economic decision (by aliens) that not even Congress can solve,” said Clarke, whose office defends many of the accused smugglers who would be affected by the new policy. She said she supposed the U.S. attorney was considering a way of relieving his assistants of the problem and getting them “into other areas of prosecution.”

According to Nunez, prosecutors have concluded that the mere fact of being charged with a felony--a more serious crime than a misdemeanor--has no deterrent effect on alien smugglers.

Moreover, in the absence of a comprehensive reform of the nation’s immigration laws, including sanctions against employers who hire illegal aliens, Nunez said, his office is only “shoveling sand against the tide” by prosecuting smugglers.

Considering the limited impact of such prosecutions, he said, “We need to make sure in light of the total picture, the big picture, that we aren’t wasting our time,” Nunez said.

The most serious smuggling cases, involving major criminal rings and large profits, would continue to be prosecuted as felonies under a policy change.

But less grievous cases, including those now prosecuted as felonies because they involve repeat offenders, would be handled as so-called “flip-flops,” Nunez said. Defendants could plead guilty to misdemeanor charges, but if they fought the charges to trial, they would be charged with felonies.

Nunez said his office could save time with the change because, unlike felonies, misdemeanors are not presented to a grand jury and generally require far less pretrial preparation by assistant U.S. attorneys.

Prosecutors would aim to keep punishments unchanged by charging defendants with several misdemeanor counts, for which they could be sentenced to consecutive terms as long as those they now face on a single felony charge, Nunez said.

“The message still has to go out that it’s a crime, and if you get caught you’re going to be prosecuted,” he said.

However, Clarke noted, it would be up to federal magistrates to sentence the smugglers, so prosecutors would have no guarantee that punishments would be as severe under the new policy.

If adopted, the policy could give federal prosecutors in San Diego more time to devote to cases involving fraud against federal programs, a Justice Department priority that Nunez said has been neglected for lack of manpower.

Since 1979, the only additions to his office’s staff of 36 criminal lawyers have been in the area of drug enforcement, despite fast growth in the San Diego area and increasing pressure on federal prosecutors to direct their attention to fraud and immigration cases, Nunez said.

The 11-member staff of civil attorneys is also stretched thin, he added.