More Hispanics go to federal prison

Deborah Denno in USA Today, June 04, 2011

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TUCSON, Ariz. — They shuffle into the courtroom in shackles, still wearing the dust-covered clothes and shoes from when they crossed the desert into the U.S. from Mexico.

The 70 illegal immigrants, mostly men and mostly in their 20s and 30s, fill the 16-seat jury box and seven rows of wooden benches normally reserved for the public in Tucson's gleaming federal courthouse. The courtroom is expansive, with a regally high ceiling, and is filled with the pungent smell of dried sweat.

In only an hour or so, the dozens of immigrants will agree to plead guilty and be sentenced in a process that could play out for months for most federal defendants.

The scene offers a window into a federal immigration enforcement effort that is pushing the limits of the U.S. justice system, overwhelming federal judges and escalating the ranks of Latinos sent to prison.

Expedited court hearings along the border are a major force driving a seismic demographic shift in who is being sent to federal prison. Statistics released this week revealed that Hispanics now comprise nearly half of all people sentenced for federal felony crimes, a number swollen by immigration offenses. In comparison, Hispanics last year made up 16 percent of the total U.S. population.

Sentences for felony immigration crimes, which include illegal crossing as well as other crimes such as alien smuggling, accounted for about 87 percent of the increase in the number of Hispanics sent to prison over the past decade, according to an analysis of U.S. Sentencing Commission data.

The trend has divided lawmakers and officials in the courts and along the border. Some politicians believe the en masse hearings should be expanded to deter illegal immigration. Others question whether the system actually affects people seeking to cross the border, while some contend the programs distract prosecutors from pursuing more serious crimes.

"There is a use of criminal justice resources that doesn't make sense ... Are we just running numbers so it appears we're doing more on immigration and drug offenses or are we doing anything worthwhile?" said Chicago federal Judge Ruben Castillo, who retired from serving on the U.S. Sentencing Commission for 11 years last December. "My question would be are we spending the money the right way, and there I would have a lot of concerns."

Some of the expedited border court hearings are part of a program called Operation Streamline that began in 2005 in Del Rio, Texas, and soon spread to other Border Patrol sectors.

It is a departure from the old "catch and release" policy and aims to stem the flow of illegal immigrants from Mexico. Before 2005, illegal crossers were sporadically charged with federal misdemeanors, but many Mexican immigrants were often simply driven back across the border.

Operation Streamline and other fast-track programs speed illegal immigrants through accelerated legal proceedings, where most guilty pleas come in Spanish and thousands of Mexican citizens end up locked up each year for entering the country without papers.

The first time someone is caught entering the country illegally usually results in a misdemeanor that leads to deportation or a maximum of six months in federal custody. If they are caught again – as often happens – they are charged with a felony count called illegal re-entry that carries at most a two-year prison sentence or more if they have a criminal history. Some felony charges ultimately are reduced to misdemeanors through plea bargains.

U.S. attorneys in numerous states, including the four flanking the southern border, have authorized accompanying fast-track programs for felony offenders that allow cases to be resolved at warp speed.

The programs have raised concerns about defendants' constitutional rights and the sheer volume of work flooding the courts. Critics say the programs overburden the court system and distract authorities from prosecuting major crimes.

The debate surfaced tragically on Jan. 8, the day of the Tucson shooting rampage that wounded Rep. Gabrielle Giffords.

Arizona's Chief Judge John Roll, who died in the gunfire at the Safeway parking lot, had been pleading with Congress to hire more judges in Arizona, the busiest corridor for illegal immigration and drug smuggling.

That winter morning, Roll went to the "Congress on Your Corner" meeting to thank Giffords for her efforts to secure more funding for the courts. Minutes after he lined up among her constituents, police say Jared Loughner began firing, and Roll died while trying to protect Giffords' district director Ron Barber.

"John just wanted to make sure people had proper due process," said Barber, a college friend of the Republican judge. "Though they were illegal entrants he wanted to make sure that their rights were fully protected."

Roll was already overseeing a fast-track program for felony crossers in the Tucson courts. But he felt the daily, systematic mass sentencing of first-time offenders could create new burdens, so he asked the key players to meet to talk about how to best run Operation Streamline.

"His position was we have to react because we don't get any choice in what prosecutors file in the court, but let's organize it in a way that is effective," said Heather Williams, Arizona's first assistant federal public defender.

Just six weeks before his death, Roll wrote an impassioned letter to the judicial body that oversees federal courts in the West seeking relief from "a tsunami" of federal felony immigration cases. Five months after his death, Roll's successor has declared a judicial emergency, but the procedures inside the federal courthouse remain much the same.

Just before 8 a.m., buses roll into the parking lot, ferrying dozens of illegal immigrants from a nearby prison and border detention facility, where they've been held since they were caught crossing.

On a recent day, 70 defendants crowded into a second-floor courtroom, their ankle and wrist shackles clanging.

Lawyers whispered to their clients, who wore black headsets to facilitate Spanish translation.

Federal Magistrate Judge Jacqueline Marshall called up the men in groups of five to read them their rights and accept their guilty pleas to illegally entering the country. Most were sentenced to time served and likely would be taken to Mexico for deportation the same day.

The shackled men said only "No" or "Si" almost simultaneously when Marshall asked them questions. When she asked them how they plead, they said, "Culpable (KUHL'-pah-blay)," Spanish for guilty.

And in a few hours, they had been counseled, arraigned, convicted and sentenced for misdemeanor illegal entry.

In another courtroom in the same building, at almost the same time, another group of immigrants still clothed in their dusty jeans was being prosecuted for felony immigration charges and other federal violations through a separate fast-track program that would allow them to begin serving time more quickly.

The U.S. Sentencing Commission tracks the number of people who repeatedly enter the country illegally in a broad sentencing category called immigration crimes. The number of people sent to prison for the primary crime of unlawfully entering or remaining in the U.S. jumped from 6,513 in fiscal year 2000 to 19,910 in fiscal year 2010. Many people also were sentenced for that crime plus other, more serious offenses.

Many federal prosecutors in border states say those penalties are making illegal immigrants think twice about trying to cross again.

"We've made tremendous progress and are moving in a direction where there are consequences of continuous efforts to cross the border illegally. The message has gotten back," said Arizona U.S. Attorney Dennis Burke, whose office has hired 17 new prosecutors since he assumed his position in late 2009. "If that has resulted in a higher number of individuals in the overall aggregate system being of Latino descent, I would say that is a separate issue."

In the meantime, Tucson federal defenders Jason Hannan and Saul Huerta have challenged Operation Streamline's legality, and call it a separate and unequal criminal justice system. Those cases are currently going through the appeals process.

Arizona Sens. Jon Kyl and John McCain recently introduced a bill to expand Operation Streamline in the Arizona courts and potentially elsewhere along the Southwest border. Kyl has often cited border patrol figures showing that immigrant apprehensions dropped 93 percent since the program began in Yuma in fiscal year 2006.

"Everybody knows where the bulk of the illegal immigrants are coming from, and if you're going to deal with the deterrent effect of putting some of those people who cross in prison for a while ... then naturally you're going to have a majority of those people be Hispanic," Kyl said. "Let's just stop illegal immigration and we won't have that problem."

Critics argue the downturn in the U.S. economy, a flat job market, more high-tech fencing and more border agents have been greater deterrents to illegal crossings.

Either way, the prison system has many more Hispanics than it did a decade ago, a demographic change experts said has already prompted debate among commissioners.

"I think anytime you have such a large proportion of one minority group sentenced to prison that means the country needs to look closely at what it's doing here," said Fordham University Law School professor Deborah Denno, an expert on racial disparities in the criminal justice system.

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Burke reported from San Francisco