On the same day the Arizona Legislature passed a strict and controversial immigration bill, the state's two U.S. senators, John McCain and Jon Kyl, announced a tough new federal border enforcement plan.
The federal plan got far less attention than the headline-grabbing state initiative, but it deserves the same scrutiny. Among other problematic suggestions, McCain and Kyl have recommended expanding Operation Streamline, a costly initiative aimed at criminally prosecuting and imprisoning every immigrant who crosses the U.S.-Mexico border unlawfully.
I recently conducted a study of Operation Streamline for the Warren Institute, a think tank at UC Berkeley School of Law, traveling to four border cities where the program is in place. In each city, I observed court proceedings and interviewed federal judges, prosecutors and defense attorneys. I also analyzed prosecution data from the border district courts.
Our report concludes that Operation Streamline forces federal prosecutors to spend their time and resources on people with no criminal history — men and women looking for work in U.S. factories and farms — instead of focusing on the drug cartels responsible for the recent surge in border violence.
Before Operation Streamline began in 2005, most unlawful border crossers were processed in the civil immigration system. The Department of Homeland Security returned first-time border crossers to their home countries or detained and deported them. The U.S. attorney's office usually saved prosecution for immigrants with criminal records and for those who made repeated attempts to cross the border.
But in many border cities today, federal prosecutors no longer get to choose which immigrants to prosecute; they must prosecute everyone. As a result, nonviolent border crossers are clogging up federal courts and straining the resources of judges, attorneys, U.S. marshals and court personnel. From 2002 to 2009, federal magistrate judges along the U.S.-Mexico border saw their misdemeanor immigration caseloads skyrocket. Criminal prosecutions of petty immigration-related offenses increased by more than 340% in the border district courts.
To handle the onslaught of cases, many courts have had to cut procedural corners. Judges conduct mass hearings, during which as many as 80 defendants plead guilty at a time, depriving immigrants of their legal rights. In December 2009, the U.S. 9th Court of Appeals held that these mass plea hearings in Tucson violated federal law. More than one judge has described Operation Streamline as assembly-line justice.
The increase in immigration cases has also meant fewer prosecutions of other sorts. As petty immigration prosecutions more than tripled nationwide from 2003 to 2008, researchers at Syracuse University found that organized-crime prosecutions and drug prosecutions declined by 20%, and weapons prosecutions fell by 19%.
Ironically, there is no convincing proof that Operation Streamline reduces undocumented immigration. The program's proponents argue that unlawful border crossings have gone down since it began, but apprehension rates along the border have always tended to rise and fall over time. According to experts in the fields of economics and migration, the most recent decline is likely due to the U.S. recession, which has greatly diminished job prospects for immigrant workers. Indeed, California is the only border district that has not implemented Operation Streamline, and in San Diego, apprehension rates dropped by 27% last year. In Tucson, where Operation Streamline is in place, the decrease was 24%.
Operation Streamline is a waste of taxpayer dollars. Rather than expand the program as McCain and Kyl advocate, Congress should stop funding it and the Obama administration should put an end to it. Instead, other border districts should follow California's lead. Here, federal prosecutors choose whom to prosecute along the border. They focus on the border crossers they believe are most likely to cause violence in U.S. cities — those who have serious criminal records or are major recidivists. Their approach avoids clogging the courts with petty immigration cases.
California's prosecution plan allows the Department of Homeland Security to detain and deport first-time border crossers without exhausting the courts, the U.S. attorney's office, the federal public defender or the U.S. Marshals Service. And it has led to some impressive results. The Southern District of California ranks first nationwide in per capita prosecutions for drug importing and human smuggling.
If McCain and Kyl are serious about promoting border security, they should allow prosecutors and judges to focus on the criminal enterprises responsible for border violence. The Department of Justice calls Mexican drug cartels "the greatest organized-crime threat to the United States." In 2008, there were more than 6,200 drug-related murders in Mexican border cities, double the previous year's total.
The violence rages on, yet Operation Streamline is tying up law enforcement resources by prosecuting tens of thousands of people whose greatest crime is seeking a job.
Joanna Lydgate is a fellow with the Warren Institute at the UC Berkeley School of Law. She is the author of "Assembly-Line Justice: A Review of Operation Streamline" and "An Alternative to Operation Streamline," available at http://www.warrreninstitute.org.