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What to Expect as the Program to Fast-Track Border-Crossing Prosecutions Debuts in San Diego

Operation Streamline, which begins in San Diego on Monday, reduces the time it takes for defendants charged with illegal entry misdemeanors to move their cases through the system. Opponents say the proceedings are expedited to such an extent that defendants are deprived of their due process rights.

Immigration protest
Demonstrators protest President Donald Trump’s immigration policies in front of the federal court building in downtown San Diego. / Photo by Andrew Dyer

This post has been updated.

San Diego’s federal court is kicking off a program that will let it decide more immigration cases, and hear each one more quickly.

The program, Operation Streamline, begins Monday and will let the Southern District of California expedite cases for those charged with misdemeanors for crossing the border illegally.

It would effectively reduce the time it takes for defendants charged with illegal entry misdemeanor to be arraigned, plead and be sentenced once they are arrested.

Opponents say the proceedings are expedited and streamlined to such an extent that defendants are deprived of their due process rights.

Since Attorney General Jeff Sessions implemented his zero-tolerance policy – under which anyone caught crossing the border illegally is charged with a crime, even if he or she has no prior criminal history – the number of illegal entry cases has surged, and the influx of cases has wreaked havoc on San Diego’s federal courts.

Last Monday, court ran until 10 p.m., a far cry from typical 5:30 p.m. end times. U.S. Marshals have to hold defendants up to four hours away in Arizona because of a lack of detention space. Issues with transportation, medical screenings and other processing bottlenecks in various detention facilities has prevented the Marshals from bringing detainees to court in time for their hearings – issues that can force judges to toss the cases.

To quell some of these issues while pushing more cases through the federal criminal system, courts and prosecutors are turning to Operation Streamline.

It’s already generated opposition. Hundreds of protesters on Monday marched from Chicano Park to federal buildings downtown to protest Operation Streamline’s implementation. Several were arrested, and others were escorted out of the downtown federal court building.

The program is already underway in other federal court districts but is only now being brought to San Diego. It looks different in different places. Some courts use a one-day system, which means that defendants are arraigned, plea and sentenced in a single day. Las Cruces, New Mexico, uses a three-day program. Del Rio, Texas uses a two-day program, where defendants are arraigned the first day.

But each version creates an entirely separate system for misdemeanor immigration cases.

A June 22 letter from federal defense attorneys indicates prosecutors in San Diego have floated the idea of a same-day program, meaning defendants would be arraigned, plea and sentenced in one day. Defense attorneys have asked that any expedited program have at least a five-day turnaround for cases.

“While below we describe features necessary to allow defense attorneys in such a court to comply with ethical obligations – and for the court itself to meet basic constitutional guarantees – we wish to make clear that we do not endorse this project,” the letter reads. “Believing that no ‘separate’ court can possibly be ‘equal,’ we object to its creation and continue to urge this Court to reject the Executive’s special pleading.”

The defense attorneys proposed beginning each day’s “streamlined” service at 8 a.m., when the U.S. attorney’s office would present the clerk with a list of all illegal entry misdemeanor defendants appearing in court that day.

At 9 a.m., defense attorneys would receive a notice of which attorneys are appointed to which cases. By 9:30 a.m., the U.S. attorney’s office would provide copies of the complaints and any discovery to the assigned defense attorneys.

Over the next four hours, defense attorneys would meet with their assigned clients in a designated courthouse meeting spot. During that time, the attorneys are expected to identify and share issues, such as whether the defendants are juveniles, if they speak a language other than Spanish and if they have any competency issues, such as a disability or a mental health issue.

Then at 2 p.m., defendants would have their initial appearances before a judge, be advised of charges against them, informed of their rights and have a bail set.

A week later, defendants would return to court for pleas and sentencing or to set future court dates if a defendant chooses to fight his or her case.

It’s unclear whether the U.S. attorney’s office has agreed to the five-day system. The office did not respond to questions involving the length and timing of proceedings.

There are a few other demands defense attorneys have made:

  • Each attorney cannot represent more than four clients a day.
  • Defense counsel needs the opportunity for private, timely, in-depth consultation with clients., All pretrial detainees be held in one of two local facilities.
  • Special accommodations for clients who speak languages other than Spanish, who have competency issues – such as a disability or mental illness – or who are under 18 years old.
  • The U.S. Attorney’s Office, must provide discovery, including arrest reports, the client’s rap sheet, any videos relating to the alleged crime, and any deportation documents, the day after the defendants’ initial appearance.
  • That the defendants are not shackled, with chains around their feet or five-point shackles also binding their wrists, in these procedures.
  • A system put in place that guarantees clients’ property, money and identification documents are returned to them upon their release from custody.

The attorneys also requested the court to direct the U.S. attorney’s office to ask arresting agents of each instance in which an arrest results in separating a parent from his or her children.

The goal of such a mandate would be to provide the defense counsel and parents with the location of the children, a contact phone number and the name of the facility where they are being held and each child’s A-number – the equivalent of a Social Security number for unauthorized immigrants – in case separation happens again in the future.

“We have been told that the administration’s family separation policy was deliberately devised to prevent the line of prosecutors from learning of this information so that they could not communicate it to the Court or to the distressed parents,” the letter reads. “The Court should not tolerate this intentional cruelty to our parent-clients or their children.”

♦♦♦

The surge in misdemeanor cases in San Diego’s federal court has led to a shortage of detention space. U.S. Marshals, the agency that transports detained defendants between jail and court, have been forced to hold some defendants 90 miles away in Santa Ana, and others nearly 200 miles away in San Luis, Arizona, creating major problems.

For example, the Union-Tribune reported that at least 50 immigration misdemeanor cases since zero-tolerance began have been dismissed as a result of problems getting detainees to court on time.

Defense attorneys, though, worry that this shortening of the court procedures will result in detainees being held more by Border Patrol at stations and immigration detention facilities and less by the U.S. Marshals. The Federal Defenders of San Diego, a nonprofit that takes on the bulk of nonprofit federal defense work in the Southern District, is collecting declarations of conditions in Border Patrol stations and immigration detention facilities, where defendants often have to spend nights before their initial court appearances.

In one such declaration from May, the defendant said he was kept in a room with 28 other people at an immigration detention center. The lights were on the entire time – night and day. In another, one detainee describes not being given access to a tooth brush, a phone to notify family of his arrest or a shower.

One detainee had to go to the hospital the night of his arrest because he couldn’t access his diabetes medication at the Border Patrol Station, according to his declaration.

Nearly all defendants charged with illegal entry misdemeanors plead guilty, often to get out of detention as quickly as possible. Defense attorneys told Voice of San Diego that they worry even fewer people will be willing to fight their cases if defendants are coming straight to court to plea after spending the night in Border Patrol custody.

Of the handful of illegal entry misdemeanor cases that have actually gone to trial so far in San Diego, nearly all have been dismissed.

Operation Streamline began in 2005 in Texas and has since been used in other districts along the border. Prosecutors and the Justice Department have said the program is necessary to address massive caseloads.

“The U.S. attorney’s office is committed to securing the border and enforcing criminal immigration laws in a way that respects due process and the dignity of all involved,” the office said in a statement provided to VOSD. The statement also said that local prosecutors and defense attorneys traveled to other jurisdictions in which Operation Streamline has been implemented to observe the proceedings and offer feedback on how it could work in San Diego.

The Houston Chronicle has described mass trials and dozens of defendants sharing a single defense lawyer; the Arizona Daily Star noted that thousands of defendants “are sentenced to prison and exit through the door without saying anything more than ‘yes,’ ‘no,’ and ‘guilty.’”

A judge who has heard thousands of Operation Streamline cases in New Mexico told the Los Angeles Times in May, “See, I have presided over a process that destroys families for a long time, and I am weary of it.”

This post has been updated to include a statement from the U.S. attorney’s office that was provided after the initial publication.

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