Two federal judges in separate cases on Monday couldn’t contain their frustration with the Trump administration and its handling of people caught crossing the U.S.-Mexico border illegally.
Under the administration’s zero tolerance policy, everyone caught crossing the border illegally is charged with a misdemeanor crime. In the past, prosecutors prioritized those with prior criminal convictions or several previous attempts to enter the country illegally.
In one case, a zero-tolerance prosecution of an Indian man charged with crossing the border illegally, the proceedings ground to a halt because of various issues and mistakes. The defendant was almost an hour late to court because Immigrations and Customs Enforcement, Border Patrol and the U.S. Marshals couldn’t figure out who needed to bring the man to court. There was also a possible conflict of interest involving the defense attorney handling the case that was being sorted out in real time – to the confusion of everyone involved.
Finally, District Judge Gonzalo Curiel had enough.
He said it was all illustrative of a lack of planning or thought on the part of the Trump administration as to how its immigration policies would work.
“And I know that all of this is a product of this administration deciding that they want to do things a certain way. They haven’t been well thought out,” Curiel said, according to court transcripts. “As a result, there’s not an infrastructure in place for much of what is going on, and time and time again, we see that there are problems developing, and so this is yet another unanticipated problem.”
Soon after, as Curiel expressed frustration with the prosecutor for raising a conflict-of-interest issue without allowing time for the defense attorney to respond, he told the government lawyer he sympathized with what he was dealing with – and ripped the administration in the process:
“But it is all product of what has been placed at your feet, at your office’s – what has been placed in your hands. And certainly, I am sure there’s any number of people in your office who have explained to this administration how these challenges will create unintended consequences and problems, and we are all trying to work through it as best as we can, as we all are required to do. And the Court is no different. The marshal is being inundated with additional responsibilities; ICE; Federal Defenders obviously is carrying an additional weight; this Court is. We are all trying to make sense of this. We are all trying to do a good job.”
Since Attorney General Jeff Sessions announced the zero-tolerance policy in April, San Diego’s federal courts have been besieged with cases, causing numerous delays and unforeseen problems, including trouble transporting defendants to and from court, a dearth of translators for non-Spanish speakers, inconsistencies with witness testimony that went undiscovered until trial and prosecutors accidentally bringing juveniles into adult criminal court.
In the next building over, District Judge Dana Sabraw has been hearing near daily updates on the government’s progress in reuniting families it separated at the border.
Late last month, Sabraw ordered the government to stop separating families and to begin reunifying those who’d already been separated. In the weeks since the order, he’s been overseeing hearings in which the government details its progress, or lack thereof.
In Monday’s hearing, he couldn’t contain his annoyance at the government’s slow progress – and a government prosecutor’s argument that bringing families together any more quickly might actually harm the children in custody set Sabraw off.
He called that contention “deeply troubling” and “completely unhelpful and doesn’t get to the issues in this case where families are being separated without any finding or determination of parentage, fitness or danger to the child,” TPM reported. “Most individual parents in the class are parents without criminal history or any indication of lack of fitness or danger, so the process that ought to be in place is one of de-selection. It should assume the government has improperly separated parent and child and just be looking for red flags, because child welfare is still a paramount consideration.”
As the courts have strained under the surge of zero-tolerance cases, judges have hinted at the difficulties the court has had in adjusting to the new procedures.
In May, Magistrate Judge Barbara Major ordered the court to shackle defendants in her courtroom in order to address safety concerns and a lack of courtroom personnel – a request that demonstrated how the wave of new cases is pushing the courts to their limit.
“As you know, we’re down this week three judges,” she said, according to a transcript. “We’re down two judges permanently, or at least for an extended period … and the number of cases that are being filed are going up dramatically. There is also a limit on the number of courtrooms that are available to me. And as a result, there isn’t enough time to get all of these guilty pleas and other matters handled one or two at a time.”
Mondays remarks from Curiel and Sabraw, though, were perhaps the most pointed expressions of frustration yet and went a step further in admonishing the administration for its role in the problems.
Laurie Levenson, a law professor at Loyola Law School in Los Angeles and a former federal prosecutor, said that given what the courts are dealing with, she’s not surprised by the judges’ remarks.
“Generally judges try to stay away from additional commentary, but there are occasions where the court feels like it needs to send a message – not just to the lawyers in front of them but also those who are making the policy decisions,” she said. “This has been a particularly challenging time for the federal judges. They have their constitutional duty to protect everyone’s rights, they don’t have the power to make the policy, and yet they see the consequences every single day.”