Border Program : Taking Sides on Juvenile Crime Issue

For years, San Diego Juvenile Court authorities had grappled with a vexing problem: how to handle a persistent cadre of Mexican youths repeatedly committing crimes on this side of the border.

Typically, a Mexican minor convicted of a modest offense was either deported or shipped to Campo for a stay at the county’s rural detention facility. But neither option proved effective. At Campo, 84% of the young Mexicans escaped, while many of those deported merely slipped back across the border and resumed their old ways.

A year ago, however, officials figured they’d found a way out of the dilemma. Under a binational program dubbed the Border Youth Project, American authorities agreed to send the guilty youngsters to Tijuana and let the Mexican juvenile justice system deal with them.

Judicial Access Questioned

The project was billed as a way to rehabilitate troubled Mexican youths while saving local taxpayers the $1 million a year it cost to house, feed and clothe the foreign offenders.

While its boosters claim the program is a smashing success, at least one local critic takes a different view. A San Diego attorney representing a boy sent south by a Juvenile Court judge argues that the program denies foreign youngsters access to the local judicial arena and forces them against their will into a Mexican juvenile justice system that has been criticized for its harsh conditions.

The attorney, E. Stephen Temko, also contends that the program may well be exposing the young offenders to stiffer sentences than they would receive in the United States--although most of the juvenile offenders have been sent back to their homes. In California, he notes, a petty-theft conviction carries a maximum sentence of six months, while Mexican law calls for a jail term of two years.

Temko has filed an appeal on behalf of his client with the 4th District Court of Appeal, arguing that the program and the state statute that is its foundation are unconstitutional. The court has requested briefs on the issue from the U.S. attorney, the San Diego county counsel and the district attorney’s office, and is expected to hear oral arguments in the case sometime this fall.

In his broad-based attack on the program, Temko contends that turning juveniles over to Mexican authorities amounts to an international “prison transfer,” an action he says can be performed only by the federal government. He also claims that, in the absence of a federal treaty expressly permitting it, no court in the United States may order a juvenile convicted of a crime in this country sent to a foreign nation.

“Such an order would dictate that a foreign sovereignty execute the penal judgments of this state and, as such, exceeds the jurisdictional authority granted by our Constitution,” Temko wrote in his brief to the appellate court.

He further charges that the project violates the 14th Amendment by depriving the Mexican juveniles of due process. He argues that officials erred by transferring his client involuntarily, beyond the “protection of the Bill of Rights,” and that the youth’s subsequent confinement by Mexican officials constituted an unlawful deprivation of liberty.

Moreover, Temko argues that the program subjected his client to “cruel and unusual punishment,” in violation of the Eighth Amendment, because the boy landed in a Mexican jail for juveniles that has been criticized as crowded and run-down.

Delivering the youth “to some unknown fate in the vile conditions of Mexican authorities fails miserably to meet the standards of decency that mark the fabric of the American judicial system,” Temko wrote.

The state attorney general disagrees roundly with Temko’s assertions.

For starters, Deputy Atty. Gen. Carl Horst says the Juvenile Court is “not deporting anyone under this program, because that is a function left to immigration authorities.” Instead, he said, the court is “exercising its authority (under state law) to use an alternative disposition when a juvenile is from out of state or out of the country.”

Contrary to Temko’s position, Horst asserts that the handling of the juveniles under the program “is not a prisoner transfer because juveniles are not prisoners in the same sense as an adult who ends up in state prison.”

“The Legislature has determined that juveniles shall be treated differently from adult offenders in a number of ways. . . . The Border Youth Project consequently does not involve a prisoner transfer,” he said.

Right Allegedly Waived

Further, Horst rejects Temko’s claim that the program cannot legally operate unless an existing federal treaty addresses the international disposition of juvenile offenders. (The Treaty on the Execution of Penal Sentences, which Mexico and the United States signed in 1976, governs the return of adult prisoners to their country of origin, but juveniles are not covered by the pact.)

“Under generally accepted principles of law, the U.S. often has dealings with foreign countries on a level that does not involve a formal treaty,” Horst said. “Occasionally, it will involve some kind of an executive agreement, but more often it will involve nothing more than an informal, unwritten understanding. The latter is what we have here.”

As for the due-process argument, Horst responds in part that Temko’s client voluntarily agreed to return to Mexico by waiving his legal right to a deportation hearing in federal court.

“This youth was not thrown across or smuggled or surreptitiously taken across the border,” Horst said. “The information we have indicates that at all times the juvenile’s rights under federal immigration laws were respected. He could have demanded a deportation hearing, but he did not.”

Watching anxiously as the legal wrangling rages are the program’s founders, who believe in its capacity to help rehabilitate young Mexican offenders and ease the strain on the American juvenile justice system.

Although they insist they consulted with federal authorities and were careful to cross the T’s and dot the I’s before launching the project, local officials concede they are worried that a “legal technicality” could ditch their efforts.

62 Youths Returned

“I distinctly remember a meeting in my chambers with the INS (Immigration and Naturalization Service) and the Border Patrol in which we sought to make sure we would not be doing anything in violation of federal law,” said Superior Court Judge Judith McConnell, who was presiding judge at Juvenile Court when the program was born. “Obviously, if we’re in violation federal law, then it ought to be stopped. But it would be unfortunate because this program is successfully placing children back in their homes rather than in institutions at public expense.”

According to county probation officials, 62 Mexican youths have been returned to Tijuana under the program since it was launched in July, 1987. Not every juvenile in custody is sent south. The more serious offenders are likely to wind up in the California Youth Authority, while some may be sent to the county’s low-security facility in Campo.

Of the 62 who have been turned over to Mexican authorities, 42 were released to their families and are under court supervision; two were sent to a juvenile camp facility in Mexicali; one, who turned out to be an adult with an outstanding arrest warrant, was sent to state prison; one was deported to El Salvador; and six were detained in the juvenile jail in Tijuana. Three have been rearrested in the United States--a recidivism rate that officials say is dramatically below the previous average.

“Just a few months ago, we reunited one family whose kid was missing for years and had been given up for dead,” said Carlos Armour, supervising deputy district attorney for the juvenile division. “Instead of just dumping them at the border, or housing them over here where they have no family and no familiarity with the culture, we are able to place them in a structured program back in their own country, where there are relatives who care about them nearby.”

There are monetary savings as well. The program, which was formally approved by the Board of Supervisors in March and operates on a yearly budget of $23,000, frees up an average of 10,000 bed days annually at juvenile detention facilities. In all, authorities estimate annual savings of between $673,000 and $1.4 million.

In addition, crime among Mexican juveniles has reportedly dropped on both sides of the border. And, under the program, several American youths in trouble in Mexico have been returned to the United States with the help of juvenile authorities in Baja.

Crime on Both Sides

The Border Youth Project was the brainchild of a Mexican juvenile official, Daniel Romero. Romero supervises the juvenile jail in Tijuana and decides the fate of the juveniles after they are released by INS officials at the border.

Romero could not be reached for comment, but San Diego officials said the program benefits Mexico because the juveniles in custody in the United States--many of whom are runaways or migrants from the country’s interior--also commit crimes in Tijuana.

“They have the same problems we do with some of these kids and are anxious to divert them to their families or into programs that will keep them off the streets,” said Armour, the deputy district attorney.

Most of the minors transported south under the project spend some time in Tijuana’s juvenile jail, known as the Center for the Orientation and Re-education for Minors. The facility, sandwiched between the adult jail and the fire station in downtown Tijuana, has been criticized by some Mexican social workers for its cramped conditions, which require many children to sleep on the floor. There have also been allegations of beatings and solicitation of bribes by guards.

American officials, however, say they have been granted free rein to tour the facility and interview children during visits and have found no evidence of mistreatment.

“It is not a modern facility,” Armour said. “The building is old, the fixtures are old. But it is clean, the kids are healthy and the food looked good. The people there care about the kids. That’s what counts.”

At the center of the legal challenge is a youth--whose name has not been released because of his age--who was convicted of stealing a watch and a pair of scissors and who appealed his transfer to Tijuana under the program. Officials said the boy was apparently held for 10 days in Tijuana while authorities tracked down his family. His mother then provided a bus ticket and he was sent home to Navolato, in the interior state of Sinaloa.

Temko, the youth’s court-appointed attorney, said that whatever the program’s alleged benefits, there remain “critical legal issues here for the court to decide.” The bottom line, he said, is whether the section of the state Welfare and Institutions Code that authorizes the transfer of the juveniles is constitutional.

If the appellate court determines that it is not, San Diego officials say, they will start over and search for new ways to accomplish their goal. One option may be to examine similar programs afoot in four border cities in Texas. Bill Anderson, executive director of the Texas Juvenile Probation Commission in Austin, said officials there have been engaged in border youth transfers--without challenge--for five years.

“We have had a decrease in the number of offenses committed by these border children and a dramatic reduction in the number we are sending to Texas correctional institutions,” said Anderson, who estimated that 250 youths are processed annually. “On the Mexican side, they have been very successful in helping the children and preventing a recurrence.”

The Texas programs, which Anderson said have been recognized by Harvard University and the Ford Foundation for their innovativeness, are somewhat different from San Diego’s. Texas authorities have no role in the deportation of the children; instead, the Mexican consul is alerted and handles the transfer to authorities south of the border.

“I’ve seen San Diego’s program and was quite impressed with it,” Anderson said. “It would be a shame to see it go under, because, from my experience, the kids would be the big losers.”