CRIMINAL inJUSTICE

 “Mr. Juárez García, did you enter the United States illegally near the town of Sasabe on or about March 13, 2013?”

Silence.

“Mr. Juárez García, did you enter the United States illegally near the town of Sasabe on or about March 13, 2013?”

Silence.

“Can you please explain to your client that he needs to verbally respond to my question?”

Mr, Juárez García looks confused. His lawyer whispers something in his ear, and he suddenly kneels down on the ground in front of the judge as if praying for mercy.

“Please tell your client to stand up. Mr. Juárez García do you understand what is

 happening here today, sir?”

“Your honor, my client doesn’t speak a lot of Spanish. He is not a native Spanish speaker. He speaks a native dialect.”

“Do you think he speaks enough Spanish to enter a plea?”

“I think so, your honor.”

“Mr, Juárez García, do you understand what is happening, sir?”

“Culpable.”

“Sir, I am not asking for a plea yet. I am asking if you understand what is happening today.”

“Sí.”

“OK, very well. Let’s continue. Mr. Juárez García, did you enter the United States illegally near the town of Sasabe on or about March 13, 2013?”

“Sí.”[1]

(De León, 2015, p.111-112)

As I watched a similar scene play out in front of me during our group’s visit to Operation Streamline in Tuscon, Arizona, my mind recalled the recent, popular Netflix-series “Making a Murderer.” In the series, intellectually disabled 16-year old Brendan Dassey is talked into making a confession of a gruesome murder. As a result of his reserved-nature, interrogators force confessions out of him. “Brendan, isn’t it true that…?” these officers would ask before spouting at him their presuppositions about what happened. In light of the pressure of the interrogation, it appeared as if Brendan felt helpless to do anything but agree. It seemed as if he didn’t fully comprehend his right to refuse the interrogation. It seemed as if he was oblivious to the consequences that words would bring. It seemed as if he was being manipulated.

While “Making a Murderer” was shocking for many of us middle-class, white U.S. Americans, I am sadly reminded that for many people – citizens and non-citizens, but overwhelmingly the poor and people of color – the U.S. criminal justice system is anything but just.

Mr. Juárez García’s journey through the U.S. Criminal Justice system likely began 24-48 hours earlier when he was picked up by a Border Patrol officer in the desert. He was then taken to a Border Patrol station where he sat in a detention cell for a night or two. The morning of his hearing, Mr. Juárez García was bussed to the Federal Courthouse in Tuscon, Arizona. There, he had the opportunity to meet with his lawyer, who is contracted by the U.S. government and paid $125 an hour. (De León, 2015, p.111) His lawyer had five other clients, and with only a few hours until the 1pm hearing, the lawyer was only able to meet with Juárez García for twenty-five minutes.[2] This gave the lawyer just enough time to explain to his client that he would plea guilty to the misdemeanor charge “U.S. Statute 1325: Illegal entry around a port of entry.” By accepting this guilty charge, his client would serve less time in prison and would avoid the lengthy delays involved in fighting one’s cause in court. By the time the lawyer finished explaining the process, time was up. Mr. Juárez García signed the document affirming his plea of guilt and recognizing that he was not in any way forced to plea guilty. Was this document presented to Juárez García in Spanish or English?

That’s a good question.

At promptly fifteen ‘till one, Juárez García was ushered into the court room for Operation Streamline, chained at the hands and feet. His diminutive stature allowed him to be overshadowed by the other 43 people on trial this day. His head hung low as his shuffled forward in file, feet passing over the glazed stone floor. As he looked up, he found himself in an imposing room. Rows of polished wooden benches lay largely empty. In front of him sat the judge upon his throne. Decorating the judge’s stand was a large stone seal, stating “United States District Court – District of Arizona.” Behind the judge, marble tiles ran thirty feet up the wall toward the ceiling. The room felt enormous, distant, cold.

After all were seated, five to ten defendants were called forward at a time. Joined by their lawyer, each individual heard their name called out. Then the judge, went one by one down the line. When he came to Juárez García he asked,

“Are you a citizen of Mexico and did you enter the United States illegally near the town of Sasabe on March 13, 2013 by going around the Port of Entry?”

“Sí.”

“Do you want to give up your rights and plead guilty knowing you will receive sixty days?”

“Sí.”

“How do you plead?”

“Culpable.”

After addressing each individual standing before him, the judge then asked the group, “Has any one made any promises, forced or threatened you in regards to your plea of guilt?”

“No,” they replied.

“Any comments?” asked the judge.

After no comments were made, the judge announced the request of one defendant to serve his time near Houston, Texas where he has family[3]. Then, the group was dismissed, and the next group of individuals came forward.

Later that day, Mr. Juárez García was put on a bus for the Corrections Corporation of America’s private prison facility in Florence, Arizona. There he would serve his sixty-day sentence. Afterwards, he would be transferred to a detention center, where he would wait for his travel arrangements to be made to the Mexican border. More than likely, he would be taken to Nogales, Sonora. However, if he was dealt an unlucky hand, he could become a victim of lateral deportation – a strategy of the U.S. government to deport Mexican citizens to locations on the border other than where they crossed, so that they are less likely to encounter familiar people and resources to cross the border again. Juárez García had already been dealt an unlucky hand once by ending up in Operation Streamline. He could likely draw another crummy hand and end up in Tijuana, El Paso or elsewhere.

Standing in a dusty lot just south of the U.S.-Mexican border, Mr. Juárez García would find himself between a rock and a hard place. Would he swallow his pride, admit defeat and try to scrounge up a few thousand pesos for the thousand-mile bus ride back to his rural Oaxacan village where he would only be further in debt, still struggling to put food on the table and now feeling ashamed? Or, would he try to connect with his coyote and make another attempt to cross the desert into the United States[4], knowing that if he was caught and sent to court again he would be dealt a felony for illegal re-entry and forced to serve a longer prison sentence?

*****

Did the U.S. have a choice but to criminalize illegal entry?

Prior to immigration reforms in the mid-2000s, including the introduction of Operation Streamline, stopping the massive flow of immigrants from the south seemed hopeless. Most illegal entrants from Mexico were “returned with minimal processing in a procedure known as voluntary departure.” Instead of attending an administrative hearing as occurs in a formal deportation, immigrants would return to Mexico without a trial or prolonged detention. Thus, after getting caught by Border Patrol, illegal entrants would answer some basic questions, sit in a detention for a short period, and then take a bus to the Mexican side of the fence.[5] Later the same day they could make another attempt to cross into the U.S. “It was not uncommon during most of the twentieth century for an agent to apprehend the same person more than once in a twenty-four-hour period, creating a game of catch-and-release that frustrated the Border Patrol and did little to discourage someone from trying again.” Undocumented entrants “became socialized to the routine process of deportation.” Border Patrol did nothing to stop illegal entrants. All they did was delay these individuals. (De León, 2015, p.109)

In an effort to enforce the border with more consequences, and thus deter undocumented immigrants from making future entrance attempts, the Department of Homeland Security decided to criminalize illegal entrance into the United States.[6] In 2005, the first Operation Streamline court was opened in Del Rio, Texas. Today, Operation Streamline happens five days a week in three of the nine southern border sectors.[7] “Under this program first-time offenders are convicted of a misdemeanor and can serve up to six months in jail. A repeat visitor to Streamline can find herself charged with felony reentry, which generally carries a two-year maximum penalty or up to twenty years in prison if the defendant has a criminal record” (De León, 2015, p.110). However, not all undocumented immigrants are funneled through Operation Streamline. Many Border Patrol sectors apprehend hundreds of illegal entrants every day. While Operation Streamline prosecutes up to seventy individuals in the Tuscon sector each day, the majority of undocumented immigrants are still sent back with little fanfare through voluntary deportation.  Ending up in Operation Streamline rather than on an immediate bus back to the border is just a matter of bad luck.

(De León)

Since Operation Streamline began, the U.S. Southern border has seen a significant decrease in apprehension of illegal entrants nearly every year. Many government officials attribute the decline in immigrants to the success of Operation Streamline in deterring immigrants from returning. To a degree they are correct. David, a Central American migrant I met at La Sagrada Familia migrant shelter, has served two prison sentences in the United States. The second was an eighth-month sentence for illegal re-entry. Though he lived [undocumented] in the Dallas-Fort Worth area for nearly two decades with his wife and kids, David has vowed to not return to the U.S. because of the fear of being sent to prison again. Instead, he plans to live just south of the U.S.-Mexico border with his father-in-law in hopes that his wife and kids – who are citizens – will move to south Texas and come visit him south of the border on the weekends.

David’s story reveals that the criminal prosecution of undocumented immigrants has deterred some immigrants from returning. However, many analysts point to the U.S. economic decline, rising smuggling costs, and increased anti-immigrant sentiments as accounting for the largest decline in entrants into the U.S. over the past decade.[8] One study even suggests that the effect of Operation Streamline [and more so, the desert] in deterring people is negligent. “In four… studies, we found that fewer than half of migrants who come to the border are apprehended, even once, by Border Patrol…. [T]he apprehension rate found in these studies varied from 24% to 47%. And of those who are caught, all but a tiny minority eventually get through, between 92 and 98 percent, depending on the community of origin. If migrants do not succeed on the first try, they almost certainly will succeed on the second or third try” (Center for Comparative Immigration Studies at the University of California, San Diego as quoted in De León, 2015, p.110).  

Despite the fact that no evidence can prove that criminalization has caused the reduction in border crossings, “prosecutions for illegal entry and re-entry rose from fewer than 4,000 a year at the start of Bill Clinton’s presidency, to 31,000 in 2004 under George W. Bush, to a high of 91,000 in 2013 under President Obama” (Wessler, 2016).

*****

What does the criminalization of undocumented entry look like?

Seth Freed Wessler writes about the prison boom in the U.S., and how the addition of tens of thousands of undocumented immigrants to this population has resulted in the birth of private-prison corporations.

By the late 1990s, the flood of inmates from this new class of prisoner, coupled with a raging War on Drugs, sent the Bureau of Prisons searching for places to put them. The BOP returned to private companies to operate a new type of facility, low-security prisons designed to hold only noncitizens convicted of federal crimes. As of June 2015, these facilities – which are distinct from immigration detention centers, where people are held pending deportation – housed nearly 23,000 people.
 Three private companies now run 11 immigrant-only contract prisons. Five are run by the GEO Group, four by the Corrections Corporation of America, and two by a privately held company called the Management & Training Corporation… Except for a prison used to house inmates from Washington, DC, these 11 facilities are the only privately run prisons in the federal criminal-justice system. In 2013, the BOP spent roughly $625 million on them…
 The BOP’s contracts with these facilities are meant to cut costs. Though the prisons are part of the federal infrastructure, the companies that run them operate under a different – and less stringent – set of rules in order to allow cost-cutting…
 Repeated federal audits and reports have found these facilities to be in crisis. Prison medical care is notoriously bad, but for years, immigrant- and prisoner-rights advocates have sounded the alarm about these sites in particular, describing them as separate and unequal, segregated on the basis of citizenship…” Nevertheless, neglect of detainees – especially in regards to medical care – in this privately-run prisons has continued.  (Wessler, 2016)

(Aanie Zhang)

*****

What is the U.S. prison boom?

In 1972, less than 350,000 were in prison or jail in the U.S. Today, more than 2 million are imprisoned. The majority of these individuals have been charged for non-violent crimes. The U.S. prison population skyrocketed over the last four decades as the War on Drugs put more and more people in prison – especially people of color. “Until 1988, one year of imprisonment had been the maximum for possession of any amount of any drug” (Alexander, 2011, 54). Now, however, the death penalty is evoked for serious drug-related offenses, and mandatory minimum sentences have been imposed for a number of drug offenses – such as “a five-year minimum for simple possession of cocaine base” (Alexander, 2011, 53). In addition to these outrageous sentences, the war on drugs has created a created a culture of prisoners and criminals. After receiving a felony drug charge, one is barred from voting, prohibited from receiving federal student loans, “barred from public housing by law, discriminated against by private landlords, ineligible for food stamps, forced to “check the box” indicating a felony conviction on employment applications for nearly every job, and denied licenses for a wide range of professions,” (Alexander, 2011, 94). One becomes locked out of mainstream society and economy. It becomes nearly impossible to find legitimate work. The lack of opportunities tends to point one right back to old addictions and illicit sales, and as a consequence, more jail time.  

In addition to drug charges, charges of illegal entry and illegal re-entry have been leading prosecutions in federal courts in recent years. In fact, about half of the individuals prosecuted in federal court nationwide in 2015 – and over half in 2014 – were prosecuted for crossing the border. Since Operation Streamline began, around 700,000 individuals have been charged for illegal entry or re-entry, including 70,000 in 2015 alone.

One must ask, why are drug offenders being locked up and not sent to rehabilitation treatment, saving government money and helping addicts overcome addiction? Why are these individuals given such lengthy sentences knowing that longer prison terms increase the probability that one will have more difficult reintegrating into society and will likely relapse and/or end up back in prison? (Alexander, 2011, 89-90).

Why are illegal entrants held in prison when all they wanted to do was find work to support their families back in Mexico, Guatemala, Honduras, El Salvador? Why are tax-payers spending so much money to imprison undocumented immigrants when these individuals only wanted to work minimal-wage jobs that would benefit U.S. citizens by providing us with cheaper fruit, hamburgers, cleaning services and houses? Why are we imprisoning people even though they are likely to make another attempt to enter the U.S., whether to provide for their family, or to avoid the shame of returning home with nothing?

One explanation is the unethical relationship that exists between private prison corporations and anti-immigrant legislators, between Department of Justice prisons and anti-drug legislators. “Both parties seem to have agreed that if one builds more detention centers the other will find ways to fill them” (De León, 2015, p.113). U.S. tax payers end up paying for each bed in detention centers and prisons, whether they are filled or not.  As a result, private-prison companies are making profits in the billions. The U.S. spent over $5.5 billion incarcerating criminally prosecuted immigrants between 2006 and 2011, including $1.02 billion in 2011 alone. Private-prison companies made a profit of over $246,561 per day - $90 million per year – for incarcerating immigrants on criminal charges in 2011. The two largest U.S. private-prison companies – Corrections Corporations of America and GEO Group, Inc. – received nearly $3 billion in revenue from federal government contracts in 2010. While these numbers are staggering, these for-profit prison companies only account for about “6% of state prisoners, 16% of federal prisoners, and… nearly half of all immigrants detained by the federal government” (ACLU, 2011).  The total price tag of the U.S. prison complex is much, much higher than $3 billion.

Central American migrants often pay upwards of $8,000 to be smuggled through Mexico. Sometimes clients are held at ransom on private Narco ranches, where they are forced to work without pay until a family member can send a few thousand dollars ransom. Central American and Mexican migrants typically pay $3,000-5,000 to be taken across the Sonoran Desert of the Rio Grande and into the U.S. Migrants crossing the desert often encounter thieves named bajadores that rob the migrants of whatever money they are carrying. Finally, once in the U.S., some undocumented migrants are held captive and not allowed release until they pay up to $30,000. This quota isn’t charged by Narcos, traffickers or petty thieves though. This is the bond fee that the U.S. government forces undocumented migrants to pay to leave detention.

Another explanation for the illogical and costly imprisonment of drug offenders and undocumented immigrants is race.

Isabel García of Derechos Humanos in Tuscon, Arizona shares that we choose what we want to punish. We will never have enough people to prosecute every crime committed or rule broken. Thus, we choose what we think is most applicable to prosecute. Lots of laws were broken in the 2008 financial crisis, but few punishments ensued. Meanwhile, we have chosen to prosecute – more than any other crime – illegal entry and re-entry.

Along similar lines, Michelle Alexander writes “for reasons largely unrelated to actual crime trends, the American penal system has emerged as a system of social control unparalleled in world history. And while the system alone might suggest that it would touch the lives of most Americans, the primary targets of its control can be defined largely by race” (Alexander, 2011, 8).[9] [I urge you to read Michelle Alexander’s book The New Jim Crow. She eloquently details the way in which mass incarceration and the war on drugs has been used to create a racist system that succeeds slavery and Jim Crow in oppressing people of color.] In his recent article “Legalize It All,” Dan Baum quotes a 1994 interview with John Ehrlichman, who had been President Nixon’s domestic-policy advisor, that concisely explains the way in which the war on drugs is a form of social control. Ehrlichman shares

You want to know what this was really all about? The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did. (Baum, 2016)

Thus, a racist system of social control, disguised as policy to be “tough on crime,” was born. While earlier systems of control exploited black labor, “mass incarceration is designed to warehouse a population deemed disposable – unnecessary to the functioning of the new global economy” (Alexander, 2011, 18).

*****

So, what’s the point? What’s the solution? What’s the conclusion to this post [that has more or less turned into a paper]?

i don’t know

I’m stunned that our justice system doesn’t actually do people justice.

I’m shocked that I had never heard of the controversy, injustice, and indiscrete racism of the war on drugs before.[10]

I’m surprised by the number of connections between the War on Drugs, whose main target is people of color in the U.S., and the enforcement of the Southwest U.S. border, whose main target is undocumented immigrants.[11]

I’m perplexed by these wars we are fighting. In both the War on Drugs and the war against illegal immigrants, we are fighting an enemy that we have created. Outside of a few rare cases, neither drug offenders nor undocumented immigrants are fighting back. These “enemies,” the “criminals” are nonviolent. Yet, we have implemented military-grade technology on our Southern border and in our police forces.[12] There is no need for this military-grade technology. Nevertheless, we have decided that we want to make these wars more than just figurative.

I’m alarmed by the fact that “the enemy” is always a minority, usually poor, and many times a foreigner.

I wonder, will we act on the proclamation on which our nation was founded: “We hold these truths to be self-evident; that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness”?

I am curious, will we remember that we were once poor, a minority and a foreigner?[13]

I hope we will listen to the stories of Israel’s time in exile, baby Jesus’ search for refuge, and Yahweh’s commandments to love the foreigner, the poor, the imprisoned. I pray that we will see that these stories weren’t just the history of a distant people, but are rather living exhortations to us today.

I am desperate for us to recognize the truth in Shane Claiborne’s words: “When you fight fire with fire – you only get more fire. The more we pick up the sword the more we die by it. There is another way. Violence is always a failure of imagination.”

Let us commit ourselves to a world of justice, freedom and equality for ALL people. In honor of those imprisoned, deported, and left suffering by our broken system, and in the footsteps of the liberator Jesus, let us say not to injustice and dedicate ourselves to creating a more peaceful, just and loving world.

“Streamline tries to grind down people’s hopes and dreams of return… the U.S. Sentencing Commission recently reported that about 50 percent of immigration re-entry offenders have children living in the U.S. They all say the word culpable or guilty while shackled in front of a judge with no due process and little understanding of how that could forever ruin their chances of legalizing their status… I locked myself under the bus as a true expression of my faith. I believe in a God of radical love and inclusion who sets the captives free. Operation Streamline is a modern-day slave trade steeped with racism, selling shackled migrants to fill the beds of private prisons for 30, 60, 180 days, and years if caught again. My conduct that day may have been a “public nuisance,” but for that day it prevented an unethical and unjust harm to 70 people on those buses. With these charges, now I’ll be a criminal too, but in solidarity with my heroes.” 

–Maryada Vallet, statement during trial for arrest as one of 12 Operation Streamline protesters on October 11, 2013, who chained themselves to the wheels of the two buses that carrying undocumented migrants to federal court in Tuscon

Reference List

Alexander, M. (2011). The new Jim Crow: mass incarceration in the age of

            colorblindness. New York: The New Press.

American Civil Liberties Union (2011, November). Banking on Bondage: Private

Prisons and Mass Incarceration. Retrieved from https://www.aclu.org/banking-bondage-private-prisons-and-mass-incarceration?redirect=prisoners-rights/banking-bondage-private-prisons-and-mass-incarceration

Baum, D. (2016, March 22). Legalize it all: how to win the war on drugs. Harper’s

            Magazine, April 2016. Retrieved from

            https://harpers.org/archive/2016/04/legalize-it-all/

De León, J. (2015). The land of open graves: living and dying on the migrant trail.

            Oakland, CA: University of California Press.

Garsd, J., & Kestenbaum, D. (2016, January 8). Episode 675: the cost of crossing.

Planet Money. Retrieved from http://www.npr.org/sections/money/2016/01/08/462438973/episode-675-the-cost-of-crossing

Wessler, S.F. (2016, January 28). This man will almost certainly die. The Nation.

            Retrieved from http://www.thenation.com/article/privatized-immigrant-

prison-deaths/

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[1]Juárez García is a pseudonym used by Jason De León. I have continued this same pseudonym and character into this blog as I discuss Operation Streamline.

[2]In Tuscon, each lawyer can have no more than six clients. However, it has been said that in Operation Streamline Del Rio, 75 individuals are tried in the morning and 75 in the afternoon. One lawyer is present for the first 75, and another lawyer for the next 75.

[3] Louis, a long-time volunteer with No More Deaths, shared that though the judge may read a defendants’ request to serve their sentence in a particular region of the country, these requests are rarely upheld. Nearly everyone prosecuted in Operation Streamline Tuscon is sent to the private CCA prison in Florence, AZ.

[4] Many coyotes have a three-try rule. “basically, if you're crossing the border and border patrol catches you and sends you back, you get two more tries - tres intentos, three tries” (Garsd & Kestenbaum, 2016).

[5] De León writes “During this same era, non-Mexican nationals… who were caught transgressing the geopolitical boundary fared even better, as they were usually released on bail and told to appear in court for a formal deportation or removal hearing at a later date. Unsurprisingly, this practice yielded a low courtroom appearance rate” (2015, p.109).

[6] The criminalization of illegal entry and re-entry actually occurred as a part of the 1952 McCarran-Walter Act, but was rarely enforced until just over a decade ago.

[7] Operation Streamline occurs in the Del Rio, Laredo and Tuscon Sectors. At its height, it was happening in six of the nine southern border sectors.

[8] Additionally, it is important to note that the decline in undocumented entrants cited is actually the record of the number of immigrants apprehended by Border Patrol. We do not have any accurate numbers on the total number of immigrants – those apprehended by BP, and those who make it into the U.S. successfully.

[9] National drug use was on the decline when Regan escalated the War on Drugs in the early 80s.

[10] “Relatively little organized opposition to the drug war currently exists… The war has become institutionalized. It is no longer a special program or politicized project; it is simply the way things are done” (Alexander, 2011, 84).

[11]In addition to other similarities already described, the chase for drugs among law enforcement is much like the chase for immigrants among Border Patrol agents. Drug task force shifts have been reported to start their shifts with comments like “Let’s go out and kick ass” and “Everybody goes to jail tonight for everything right?” (as quoted in Alexander, 2011, 80). Meanwhile, Border Patrol agents make very similar comments. A picture of Border Patrol ATVs at the Douglas Station we visited was captioned “Outrun These.”

[12]The Pentagon has been more than willingly to send military equipment to local police forces cracking down on drugs. Between January 1997 and October 1999, 3.4 million orders of Pentagon equipment were placed by local agencies. Additionally, SWAT teams have sprung up in virtually every U.S. city, and paramilitary SWAT raids have increased from a few hundred raids in the U.S. in 1972 to more than 40,000 in 2001 (Alexander, 2011, 73-80).  On the Southern Border, Border Patrol uses motion sensors, hi-tech cameras, drones, and more military grade technology. For discussion on the border as a warzone, check out https://www.youtube.com/watch?v=krsZ0I2G_WY from 8:55-10:05

[13]From the perspective of a white U.S. Christian: My heritage comes from European immigrants. Many of these individuals came poor and worked as tenant farmers. Many also came to exercise religious freedom - as Protestants were a minority in 16^th Century Europe.