Juvenile-Violator Policy Under Gun : Legality of Sending Minors Back to Mexico Being Argued

Is sending undocumented youthful offenders back to Mexico a humane alternative to custody in U. S. juvenile facilities?

Or is it an inhumane policy that shows blatant disregard for their rights?

Those were the divergent views presented Wednesday before a three-judge panel of the California Court of Appeal in San Diego.

At issue is the future of a policy used in San Diego County for certain undocumented offenders.

Mexican Law Takes Over

Under the 19-month-old initiative, known as the Border Youth Project, dozens of undocumented minors held for relatively minor crimes in the United States have been placed in the custody of Baja California state juvenile authorities in Tijuana. There, they are subject to Mexican law and penalties: Some are released to their families, others are sentenced.

The program, county and state officials argue, saves the taxpayers about $1 million a year in housing and other incarceration costs for undocumented offenders and also serves to return the youths to their homeland.

But critics say the initiative deprives youths of their basic rights in the United States and subjects them to the whims of a foreign justice system.

The future of the San Diego program is on the line in the current court proceeding. An appellate ruling is expected within 90 days.

Similar programs exist in the border states of Texas, New Mexico and Arizona, though there is no formal prisoner-exchange treaty between the United States and Mexico for minors. Los Angeles County, with its huge population of undocumented youngsters, is contemplating creation of an initiative similar to the one in San Diego, according to testimony.

Example of Cooperation

The project is a prime example of the kind of international cooperation common between officials, academics and others along the U. S.-Mexican border, often despite the absence of formal treaties or agreements.

The San Diego program, argued Gary C. Seiser, deputy San Diego County counsel, allows juvenile judges greater “flexibility” when sentencing minors.

But E. Stephen Temko, a San Diego attorney who is challenging the policy, charged that the program is in broad conflict with the U. S. Constitution, notably by depriving the youths of due process, subjecting them to cruel and unusual punishment and circumventing the federal authority for immigration law and international treaties.

Temko is appealing the sentence of a Mexican youth who was enrolled in the program and sent back to Mexico after being convicted of stealing a watch and a pair of scissors in the United States.

“We violate our own Constitution in 14 ways, and we call it flexibility?” Temko asked.

The juvenile jail in downtown Tijuana, where many of the youths are dispatched, has been criticized by social workers and former residents as an a crowded, aging facility where cruelty and extortion are commonplace. Mexican officials have denied the charge.

“There’s no evidence that any children ever sent back to Mexico under this program have ever been in any way mistreated,” said Seiser, the county attorney.

An ‘Evil Empire’

Carl H. Horst, deputy California attorney general, accused Temko of painting Mexico as an “evil empire” where “horrendous” jail conditions are prevalent.

In an interview afterward, Temko noted that congressional hearings during the 1970s found evidence of widespread torture, physical abuse and extortion in the Mexican prison system. Those hearings led in part to a treaty creating a prisoner exchange program--for adults only--between the United States and Mexico.

Associate Judge Howard B. Wiener expressed concern about the lack of appeal rights for youngsters who are sent back to Mexico. If a youth’s conviction is overturned on appeal, Wiener noted, there is no reason to believe that Mexican authorities will pay attention.

“It’s ludicrous to think that an appeal has any effect on a Mexican court,” Wiener said. “We can put our names on it and our seals, and they can just laugh at us, which they should.”