In November 1993, Alan Bersin came to the U.S. attorney’s office in San Diego.
Bersin, who later became President Bill Clinton’s “border czar” and held various high-level positions in the Department of Homeland Security under President Barack Obama, saw several problems with the way unauthorized immigration was being handled at the California border.
One of those problems was the way the office was prosecuting migrants.
The U.S. attorney’s office was prosecuting thousands of misdemeanor cases, with little jail time, for those entering the country illegally – and it wasn’t proving to be a deterrent. Bersin decided he’d focus on prosecuting felonies for illegal re-entry, meaning people who had been deported multiple times or who had serious criminal histories. The rest he’d leave to immigration officials.
Deportation is a process separate from the criminal courts that’s run by Immigration and Customs Enforcement.
As a result of the shift, for the past two decades, misdemeanor charges for illegal entry have been used sparingly in immigration-related prosecutions in the Southern District of California, the federal court that covers San Diego, though they were used frequently in the 1970s and ‘80s.
Recently that approach has been turned on its head. Hundreds of misdemeanor illegal entry charges have suddenly flooded San Diego’s federal court in the past few weeks since Attorney General Jeff Sessions announced in April a “zero-tolerance” policy  at the U.S.-Mexico border. Everyone involved, from the defense attorneys to the U.S. Marshal Service to the magistrate judges themselves, seems to be struggling to adjust to the sudden influx of cases .
But former U.S. attorneys who worked in San Diego note that we’ve been here before, and say looking at what happened a few decades ago can inform Sessions’ new policy.
To Bersin and Chuck La Bella, who worked as a first assistant U.S. attorney and U.S. attorney beginning in 1993 in San Diego, the new policy just isn’t sustainable.
“You can’t proceed on a blanket, zero-tolerance basis for any extended period,” Bersin said of Sessions’ mandate. “Sufficient resources simply do not exist to accomplish that objective. This is likely to result in a short-term deterrent effect similar to the reaction of the president’s heated rhetoric when he first came into office. Migrants stopped coming for a period of time, but then the flow of irregular migration increased again.”
Another former U.S. attorney, Peter Nunez, who worked in the office before Bersin’s policy shift, said he believes ramping up misdemeanor prosecutions will prove effective in discouraging unauthorized migrants. Nunez disagrees with claims that the policy puts a strain on resources and says that with some of the other border security measures put in place in the past few decades, the misdemeanor strategy will be even more effective this time around.
“I think prosecutions now have a much greater potential,” Nunez said. “The point of prosecuting people is that the possibility of jail time and the impact on your future immigration rights will become part of the deterrent process. Once you are convicted of an immigration offense, you lose your chance of applying for legal status.”
For many years, the Southern District of California was filing 3,000 to 5,000 misdemeanor cases a year for illegal entry, according to an article Bersin wrote in the Federal Sentencing Reporter in 1996 .
“It was clear that misdemeanor prosecutions, even by the thousands, did nothing to stem the tide of illegal immigration,” Bersin wrote. “Since each illegal entrance violates federal criminal law merely by entering the United States, it was readily apparent that we could not, even were it deemed desirable, arrest, prosecute, and convict a half million or more people annually.”
In 1993 alone, he wrote, 1,300 previously deported individuals with “serious criminal histories” were allowed to plead guilty to illegal entry misdemeanors when they could have been charged with a more serious felony for illegal re-entry that had a longer sentence of two to 10 years.
The maximum sentence for an illegal entry misdemeanor is six months in prison or a $5,000 fine.
During the same year, more than 2,000 “economic migrants” were booked into the local federal prison, the Metropolitan Correction Center, and brought before a federal magistrate judge to receive misdemeanor sentences of 0 to 30 days, Bersin wrote.
“Prison beds, which should have been reserved for serious felons, were being filled with economic migrants, with no prior criminal history,” he wrote. “In this District, it was not uncommon to find some defendants returning to the MCC several times over the years, to serve sentences that were incrementally more severe each time: 30 days for the first offense, 60 days for the second time, then 90 days, and so on, up to 180 days.”
So in 1994, Bersin shifted tactics, focusing on felonies.
“As a result, for the first time in its 30-year history, more felonies than misdemeanors were filed in the Southern District of California,” Bersin wrote. “In 1993, 26.2 (percent) of all cases filed in this district were felonies. In 1995, the percentage of felony cases rose to 55 (percent), skyrocketing to 2,250 cases compared with 1,182 during the previous year. In 1996, 90 (percent) of the docket consists of felony cases. Of that total, approximately half are cases filed against criminal aliens and alien smugglers.”
This trend had largely continued, until now. Between 1994 and 2014, the highest number of illegal entry misdemeanors filed was in 2008 – 936 in the Southern District of California, according a Bureau of Justice Statistics analysis of Administrative Office of the U.S. Courts data provided to Voice of San Diego. Last week alone, there were roughly 113 filed just in San Diego, according to court calendars.
La Bella said Sessions’ new prosecution policy seems unrealistic.
When Bersin shifted the policy, La Bella said, it was because the U.S. attorney’s office acknowledged it couldn’t prosecute every single immigration case.
“The criminal justice system is not the way to regulate immigration,” La Bella said. “There is not the infrastructure to do it. The resource of the criminal justice system are better spent on criminal aliens, who have been detained and convicted of crimes in the U.S. or those who return after they are deported. Using the criminal justice system to regulate immigration is a fool’s errand.”
Today, apprehensions at California’s border are far lower than they were in the ‘90s, thanks in part to changing economic conditions in both the United States and Mexico  and increased border security through other measures, like Operation Gatekeeper in 1994, which erected a fence along the border, upped Border Patrol staffing in the region and introduced better technology to catch and identify migrants who crossed illegally.
Back then, there were up to 600,000 border apprehensions in California a year, according to Bersin’s article.
In fiscal year 2017, there were 44,720  apprehensions by the El Centro and San Diego Border Patrol sectors, according to Customs and Border Protection statistics. In fiscal year 2018, which is a little over half done, there have been 37,849 apprehensions  along the California border so far.
But even at the current high rate of case filings, hundreds of immigration-related misdemeanors and felonies a week, it doesn’t seem likely they’ll be able to prosecute everyone.
Nunez, who was in San Diego’s U.S. attorney’s office from 1972 to 1988, when the office was prosecuting thousands of misdemeanors a year, said getting everyone isn’t necessarily the point.
Not everyone gets a ticket when they run a red light, he said, as an example. But knowing you could, stops a lot of people from doing it.
“We used the policy that a bird in the hand is worth two in the bush,” Nunez said. “We knew we couldn’t prosecute everyone as a felony. There were very few, if any deterrents to illegal immigration then. The numbers were so overwhelming. It was a token effort to demonstrate that we were going to do what we could do with the resources available.”
Nunez said that jail time and the fact that even a misdemeanor would hinder a person’s ability to gain legal status in the United States will discourage people from entering the country illegally. And now that fewer people are crossing the border illegally, he said he thinks misdemeanor illegal entry prosecutions will be more effective than in the past because they’re working in cohesion with other deterrents.
He also doesn’t buy the argument that the courts can’t handle the strain of increased immigration-related prosecutions. Nunez said when he was at the U.S. attorney’s office, it prosecuted thousands of misdemeanors a year with fewer attorneys and magistrate judges than they have now.
“It infuriates me when I hear people offer up these arguments,” Nunez said. “Does it matter if it requires the judges to reorient their schedules? A lot of the people who raise these issues are the ones who don’t want immigration law enforced.”
There’s one barrier still in place today in Southern California that the former U.S. attorneys agree hinders the prosecutions: the lack of federal detention space in San Diego.
“There’s never been enough detention space, even in our days,” said Nunez.
That’s already proved to be an issue in the past few weeks to federal public defenders and other defense attorneys who are facing a surge in people to represent, many of whom are being held 90 minutes away in the Santa Ana Jail, limiting their ability to interview clients and get certain documents signed.
“You’re going to bankrupt your own criminal justice system,” La Bella said. “All the jail space is going to be taken up. All the marshal time is going to be spent transporting people. All the criminal defense lawyers are going to be screaming that they can’t see their clients.”