Official Defends Expelling of Drug Suspects

U.S. Atty. Alan Bersin on Friday defended his office’s policy of expelling some suspected drug smugglers from the United States rather than prosecuting them, saying, “We think we are getting a better deterrent at a cheaper price.”

Bersin, the Clinton administration’s border czar, was supported in his contention by his two predecessors as the top federal prosecutor in San Diego and Imperial counties, both appointed by Republican presidents.

William Braniff and Peter Nunez, also speaking to the private, nonprofit San Diego Crime Commission, said expelling some suspected smugglers and yanking “green cards” that allow them to enter the United States is a better way to deter drug smuggling than taking a chance of prosecuting them for misdemeanors.

The Times reported Sunday that hundreds of smuggling suspects apprehended at the border with substantial quantities of drugs were sent back to Mexico without prosecution under a program adopted by Bersin’s office two years ago.

In the political fallout, Republican Gov. Pete Wilson has called for congressional hearings, and California’s Democratic senators Dianne Feinstein and Barbara Boxer have announced plans for legislation to make it easier to prosecute drivers caught with drugs at the border.

Bersin criticized the Times report, saying it inaccurately indicated that cases involving less than 125 pounds of marijuana will not be prosecuted. “Our office does dozens and dozens and dozens of drug cases under 100 pounds,” he said.

His office distributed a fact sheet showing that 149 of the 501 felony drug cases last year involved less than 125 pounds of marijuana, and that so far this year, 93 of 187 cases involved such quantities.

The article quoted a top U.S. Customs official who said federal authorities were operating under informal guidelines that call for deferring federal prosecutions in cases involving first-time Mexican offenders who are caught with less than 125 pounds of marijuana, or if the prosecutor deems the case weak. In an interview last week, a prosecutor in Bersin’s office had confirmed that 125 pounds was a general guideline that is considered along with other factors in the case.

Bersin, appointed in late 1993, said he has shifted the emphasis of his office from misdemeanor prosecutions to felony prosecutions. One reason, he said, is that prosecutors were losing about 60% of misdemeanor cases, in which often the only evidence is the fact that drugs were found in a car passing through a port of entry.

He said a common defense in such cases was: “Jose asked me to drive the car over from Tijuana to Chula Vista to get it repaired and I’m shocked and amazed there were narcotics in the car.”

Nunez, who served as U.S. attorney from 1982 to 1988, said losing a number of such cases “became a morale problem [among prosecutors] because no one likes to go into court and lose a case.” Losing a green card, Nunez said, “is the thing they [people tempted to become drug smugglers] care about most. They don’t care as much about going to jail as losing that document.”

Braniff, the U.S. attorney from 1988 to 1993, said, “If I had the options then that Alan has today of immediately ejecting and taking the green card, I would have used that rather than misdemeanor prosecutions. . . . I think in most cases it is a greater deterrent than misdemeanor prosecutions.”

People caught smuggling drugs can be charged with a felony offense, carrying a minimum of two years in prison, or a misdemeanor, carrying up to a year in jail.

Under a policy instituted by Bersin, many people caught with drugs in their cars are sent through a “port court,” where they are stripped of their permit to enter the United States and then deported.

Because it is not a criminal proceeding, the burden of proof is on the suspect to show why he or she deserves to maintain a green card. Since 1994, more than 1,000 people in Bersin’s jurisdiction have been “excluded” from the U.S. in this manner, pending an immigration hearing. Records show that one out of four suspected smugglers was handled that way in the past two years.

Under the exclusion process, Bersin said, such people who then return to this country can be prosecuted for a felony.

Times staff writer H.G. Reza contributed to this article.