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Zero Tolerance, Second-Class Justice? Mass Prosecution Comes to California
Ted Soqui

Zero Tolerance, Second-Class Justice? Mass Prosecution Comes to California

As fallout over the Trump administration’s zero-tolerance immigration policy continues, attorneys representing migrants apprehended along California’s southern border are grappling with the next crisis: a shadow justice system they say will deprive defendants — most of them poor and desperate — of due process.

“To the extent that the U.S. Attorney’s office wants to create a parallel justice system for brown people crossing the border, we will fight every step of the way,” said a Southern California federal defense attorney who is currently active in immigration cases but declined to be identified as they had not been authorized to speak to the press.

Implementation of an expedited plan to prosecute 100 percent of detainees — including migrants and asylum seekers arrested on first-time illegal-entry misdemeanors — is supposed to roll out Monday, July 2. While the details remain unclear on the program modeled on Operation Streamline, notoriously in effect in other border cities for decades but relatively absent in California, the government has estimated caseloads would range from 35 per day to as many as 150, with defendants processed start to finish in a single day, attorneys familiar with the matter said.

“We have seen a massive increase — a huge, dramatic increase in the number of illegal misdemeanors brought to court in San Diego and El Centro courthouses, so some form of zero tolerance is already in effect but we don’t know how much,” said Jeremy Warren, a former federal public defender now in private practice as a member of San Diego’s Criminal Justice Act Panel.

Even now, insiders say the system is buckling under the pressure and threatening established procedural norms that protect defendants’ rights — particularly those of vulnerable populations — before they get to court.

“We’re seeing increasing numbers of people speaking indigenous languages — there were five different indigenous languages on Monday. Three people were brought to court who were juveniles,” said the federal defense attorney, exasperated. “There was also a pregnant woman — sleeping on a cardboard box under a metal blanket, eating cookies, at the Border Patrol station. Traditionally in our district these people would get processed … screened to make sure you’re not a juvenile, what language you speak, medical exams... Are you in detox? Are you pregnant? Are you diabetic and need immediate treatment?”

Due to a bed-space crisis, the attorney said, more people are spending time at Border Patrol facilities and not receiving the kind of access to screening and services detainees would normally be afforded.

Related inquiries to U.S. Customs and Border Patrol and the U.S. Attorney’s Office were redirected to ICE; an inquiry to ICE was not answered.

Asked what accommodations it might make for defendants’ constitutional rights within an Operation Streamline–type program, a spokeswoman for the U.S. Attorney’s Office repeated a statement previously offered to media outlets, via email, that it was “working with the court system to address the increase in immigration prosecutions in a manner that respects the constitutional rights of defendants.”

Such vagaries, coupled with Trump’s recent tweets advocating the elimination of due process for undocumented immigrants, do little to assuage concern among legal professionals.

“We on the defense side, we’re very concerned because we know it’s our obligation to provide competent representation to protect our clients’ rights,” Warren said. “And a streamlined process spitting people out like hot dogs in a factory just doesn’t protect their rights. We have an obligation to get to know our clients, determine discovery, see if they have defenses — all of these things can’t happen in 20 to 30 minutes.”

Richard Raynor, a federal criminal defense attorney in Los Angeles County who worked as an assistant federal public defender in Tucson for five years, including during Operation Streamline, said even prosecuting 100 people per day will still amount to only a small percentage of the massive influx due to zero tolerance.

“Everybody who enters is being prosecuted. In the past, let’s say they choose 100 people to prosecute — they’re not going to prosecute the mom and the kid; they’re going prosecute the men and maybe a woman who doesn’t have a child with her — because there was an exercise of prosecutorial discretion,” Raynor said. “And so I think that’s the genesis of this whole crisis now.”

He described tables set out in the Tucson federal courthouse’s ceremonial room where defendants lined up 20 deep to meet with attorneys, all pleading guilty en masse — as well as an idea floated, and ultimately dismissed, to hold court hearings on Border Patrol property or military bases, “as a way of herding people like cattle.”

“We know that there’s the Tucson model and we very much feel that would be inappropriate in California,” Warren said.

These defendants, he said, are not the gang members of Trumpian lore.

“Overwhelmingly these are peasants from small villages, and relatively unsophisticated when it comes to court procedure. Many don’t speak Spanish, they speak indigenous languages, so it’s a tall order to effectively represent them. These cases sound simple, but nothing is as simple as it seems,” Warren said.

Raynor described the reality behind the numbers in Arizona: “The human side — when you talk to these people, ask what are the circumstances of what brought them to the U.S. — there were a lot of people who didn’t even speak Spanish. Campesinos, people making $10 at most a day, many of them starving in their own country.

"They’re just looking to feed their kids, to survive,” he said.

“To try to put all of it on people who are just trying to find work, and make them pay all of the costs of this broken immigration system, is just so unfair.”

The federal defense attorney who described current conditions in California also reported the U.S. Attorney’s Office wants to do away with initial court appearances — where defendants typically go before a magistrate who gives them basic information, sets bail and appoints an attorney — for illegal-entry misdemeanors, which would simply be brought to court for the first time to plead. “It’s giving less rights to an entire class of people,” the attorney said.

These kinds of shortcuts have been roundly criticized by lawyers and immigrant rights advocates and, to some degree, successfully challenged in the Ninth Circuit Court of Appeals.

While describing an ongoing discussion among all stakeholders as to how the surge will be handled, Warren said they are ultimately at the mercy of the federal government.

“It’s not our say. They can prosecute anyone they want. We have to respond. But we’re not going to just roll over and allow a second-class system of justice to occur. We have really good judges in San Diego. … The court and defense have an obligation," Warren said. "We have to represent one defendant at a time and we’re going to do that.”

Either way, he said, “It’s going to require a massive amount of resources diverted from other matters. It will have a huge effect on the public defenders and private attorneys in San Diego, as well as our friends in the U.S. Attorney’s office. The question is, is that an effective use of taxpayer money?”

Raynor said he and others in Tucson struggled with a system they saw as unfair while doing their best to help the people caught within it.

“I think a lot of us felt conflicted because we felt the whole system needed to be taken on, which may require a person to stay in custody for a longer period of time,” he said, noting illegal-entry offenders would typically get time served and be back in their country in a few days. “We’d volunteer to try to help reunite them with their belongings … do what we could in the system to make it better, but most of the time people just wanted to get back home.”

He said pushback will need to come from judges who won’t allow “due process to be undermined under the guise of 100 percent prosecution,” and questioned logic of implementing a steroidal version of the controversial practice during a time of crisis in California.

“To me it just seems ludicrous because the system is (already) overwhelmed with just trying to do a very small percentage," Raynor said. "It will cost a tremendous amount of money, and won’t be that effective. These are people who are so desperate, they’re already facing life-or-death choices.”

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