High Caseload Led to Easing of Drug Rules

Controversial federal guidelines for prosecuting marijuana arrests of Mexican nationals along the border were adopted three years ago by U.S. officials in San Diego--and within a year, the threshold amount was more than doubled, records show.

Pressure resulting from increased drug arrests prompted officials to adopt general guidelines in 1993 outlining conditions under which Mexicans who were caught with up to 50 pounds of marijuana could be excluded from entering the United States, rather than prosecuted. In 1994, the weight guideline was amended to 125 pounds, documents show.

“The incidents of border-related drug arrests have increased exponentially over the past two years,” said a September 1993 memo from the special agent in charge of the U.S. Customs Service in San Diego.

Noting the hardship caused by an increased caseload on agents, prosecutors and the courts, the memo said that customs agents, federal prosecutors and immigration officials agreed to defer certain marijuana prosecutions--namely low-level Mexican narcotics smugglers who are first-time offenders--”to help alleviate some of the pressure.”

“It is the intent of the program to create an effective deterrent, while reducing the amount [of] time and manpower presently being expended on post-arrest investigations. It should be stressed that this program is is not be used to ‘dump cases,”’ the memo to customs agents said.

It noted that if the evidence supported prosecution, the case should be submitted to the U.S. attorney’s office, especially when involving individuals with prior convictions.

A customs spokesman in Washington confirmed the information in the documents, noting that both guidelines were implemented at the request of the U.S. attorney’s office in San Diego.

U.S. Atty. Alan Bersin, who took office two months after the 50-pound guideline was adopted, could not be reached for comment late Thursday. His predecessor, interim Bush administration appointee James Brannigan, declined to comment when contacted by phone regarding the 1993 guidelines.

“There is not a hard guideline for prosecutions, or deferral of prosecutions, based on an amount of drugs seized,” said Carole Florman, a Justice Department spokeswoman in Washington. “They will prosecute anyone with a distributable amount of drugs if there is enough evidence.”

Officials previously reported that the program to deport rather than prosecute certain marijuana suspects was implemented in 1994 with a 125-pound guideline. Government figures indicated that there were no exclusions in 1993, but 215 in 1994.

One source said Thursday that the guideline was increased in June 1994 by Bersin, a Clinton appointee, because the caseload continued to rise, and the program got into full swing in 1995, when there were 636 exclusions.

The policy, first reported by The Times two weeks ago, has allowed more than 1,000 suspects caught smuggling drugs at California border ports to be returned to Mexico since 1994.

Under the program now in effect, records show that criminal prosecution is deferred if a smuggling suspect meets five criteria: A suspect cannot be a U.S. citizen and cannot have a criminal record. In addition, there must be proof of lack of knowledge and criminal intent; the suspect must have little or no information about organized drug smuggling and must be found with less than 125 pounds of marijuana.

Atty. Gen. Janet Reno, who earlier said she was unaware of the 125-pound guideline, defended the policy in a letter this week to Sen. Bob Dole, the presumptive Republican presidential nominee. She said the policy is effective because an illegal immigrant’s visa or border crossing card is automatically confiscated under the program.

Previously, immigrants caught smuggling drugs at the ports were prosecuted as misdemeanor violators and were allowed to keep their visas or crossing cards, said Reno.

At a Washington news conference Thursday, Deputy Atty. Gen. Jamie Gorelick said the so-called exclusion policy “is a very, very strong and robust program.”

About 2,300 suspected traffickers were taken into custody for bringing drugs across the border in the last year, but records show one in four were returned to Mexico without prosecution under the policy. Officials said they have prosecuted even small marijuana cases when there was sufficient evidence or referred them to the San Diego County district attorney’s office for prosecution.

Publication of the exclusion policy in The Times created a political furor in this election year. Bersin and other Justice Department officials launched a campaign to explain the program and attack The Times’ stories.

Republican politicians attacked the deferred prosecutions as counterproductive in fighting drug smuggling, while some GOP law enforcement officials in San Diego came to Bersin’s defense.

On Thursday, Assemblyman Jan Goldsmith (R-Poway), chairman of the Assembly subcommittee on border crime, asked Reno to appear before the group at her earliest convenience to “delineate” the exclusion policy. On Wednesday, Goldsmith joined five other legislators in asking that Reno rescind the exclusion policy and prosecute the smugglers instead.

Gov. Pete Wilson and GOP politicians in Congress have also asked Reno to release the names of the more than 1,000 Mexican traffickers whose prosecutions were deferred under the program.

In a letter last week to The Times, Bersin said that the exclusion policy has allowed federal and local prosecutors in San Diego to double the number of felony border drug prosecutions in 1995, compared to 1993.

Bersin said that a large majority of marijuana cases prosecuted in the last two years are for quantities under 125 pounds.