Police the border, flood the courts

CHARLES L. LINDNER is past president of the Los Angeles Criminal Bar Assn.

HOUSE Republicans pushing an enforcement-first approach to illegal immigration have been silent on one key question: What happens after an immigrant is arrested?

U.S. District Judge Robert C. Brack puts it another way: “You can add Border Patrol agents, but if you do, you’d better think [downstream]. You’d better think marshals; you’d better think prosecutors, probation and pretrial services officers, defense lawyers, judges and clerk’s staff -- all of those things.”

The problem is that almost no one in Congress is thinking about the effects of tougher immigration enforcement on the federal judiciary system. House-passed legislation does not allocate the money needed to pay for its proposed crackdown on illegal immigrants. Nor does the Senate bill.

Make no mistake, a compromise on the two bills probably will contain enforcement provisions tougher than those now on the books. At a minimum, the Border Patrol will be beefed up. The House bill would add 1,000 agents, the Senate’s 2,500 as quickly as possible. How might the increase affect the federal judiciary system?


Of the 69,000 federal criminal cases filed last year, 17,000 were immigration-related. Many were for illegal entry into the United States; human smuggling was the fastest-growing arrest category. In a five-month period in Arizona in 2004, the Border Patrol reported arresting 203,460 unauthorized immigrants. It pursued the prosecution of 2,067 felony and misdemeanor cases. In other words, the government prosecuted one criminal case for every 100 immigrants apprehended.

Prosecuting a larger fraction of the immigrants caught during that period would have put added pressure on the federal judiciary there. But the purpose of adding border agents is to make more arrests and get more convictions. Clearly, at some point, the federal judiciary system would be unable to process the increasing caseload unless significantly buttressed.

Judges would be the first to feel the burden of tougher enforcement. About 1,100 of them sit in the nation’s federal district courts, and they are already overworked. (By way of comparison, California alone has 1,399 Superior Court judges.) Federal judges, on average, each have 87 open felony cases before them. In Brack’s district in New Mexico, a state hard-hit by illegal immigration, the average caseload is 405. In the Laredo division of Texas’ southern federal district, which also is on the frontline of the illegal influx, the average is 1,400.

Congress is reluctant to add to the supply of judges by appointing new ones because more judges mean more courthouses, more offices for federal prosecutors and public defenders, more marshals, more clerks and so on -- and that is costly.

Most expensively, more illegal immigrant arrests and convictions mean more prisons and staff to run them. The federal Bureau of Prisons operates 106 facilities and 28 urban correction centers for pretrial detainees. It oversees 185,000 prisoners; its 2006 budget is $4.9 billion.

Consider this worst-case scenario: The immigration legislation passed by the House in December would make illegal presence in this country a felony. If just 1% of the estimated 11 million illegal immigrants were arrested and convicted under the proposed law, the Bureau of Prisons would be overwhelmed. In the last three years, it added more than 11,000 inmate beds. Imprisoning the new felons would require 110,000 more beds. New prisons would cost of billions of dollars.

The Department of Homeland Security, through Immigration and Customs Enforcement, can -- and would -- avoid putting immigrants through the criminal justice system by increasing its use of administrative detention for alleged immigration violators. Just how many would be detained and for how long is unknown, but the waiting period for a hearing can stretch into years. As of 2004, ICE operated 16 detention centers in eight states and one in Puerto Rico. The facilities currently house about 23,000 detainees.

Under the Senate-passed legislation, the Congressional Budget Office reports, 20 new immigration detention centers would have to be built, at a cost of $70 million each. These facilities would collectively house 10,000 prisoners at a time, which is less than a thousandth of the lower end of the estimated illegal immigrant population. The cost of staff and maintenance from 2007 to 2011 would be $1.5 billion.


Tough talk on immigration is cheap. But the politicians who engage in it risk collapsing a judiciary system already overburdened with criminal cases. Creating more criminals hardly seems the answer.