U.S. Immigration and Customs Enforcement
A U.S. Immigration and Customs Enforcement bus sits parked outside of federal court in downtown San Diego. / Photo by Adriana Heldiz

When Attorney General Jeff Sessions announced a new “zero tolerance” approach to prosecuting every person accused of crossing into the United States from Mexico illegally, he said the effort was necessary because “a crisis has erupted at our Southwest Border.”

The zero tolerance policy itself has ushered in its own crisis in the five months since it was adopted, sowing chaos, confusion and mistakes in courtrooms and detention centers as stakeholders on all sides have scrambled to adjust to the massive priority shift.

Juveniles have accidentally been charged with crimes in adult court. People ordered released have languished in custody. Problems with witness testimony and other mistakes have been discovered in real time, leading prosecutors to drop cases mid-hearing. Agencies that detain and transport migrants being charged with misdemeanors have struggled to accommodate the influx of people, resulting in allegations of substandard conditions, delays transporting people to court – leading to more dropped cases – and other issues.

Here’s a rundown of some of the new dynamics at play and the issues that have surfaced under zero tolerance so far.

Mistakes Hamper Prosecutions

Immigration attorneys on both sides can make mistakes that impact the outcomes of cases. But the sheer numbers of cases being brought under zero tolerance – and the speed at which the cases unfold under Operation Streamline, a new system to speed up border-crossing prosecutions – has forced a slew of mistakes. In some cases, the mistakes have forced the government to toss out the cases and release the defendants.

That includes prosecutors accidentally charging and proceeding with cases against juveniles in adult court. The government handles children it suspects of having crossed the border illegally much different than adults.

“In the month of June, at least three boys under the age of 18 were detained with adults in Border Patrol stations upon their arrest near the border, and then brought for initial appearances in criminal court,” Maya Srikrishnan reported in July.

Under zero tolerance, many defendants plead guilty to end their cases as quickly as possible.

But of the cases that have gone to trial, mistakes and inconsistencies have emerged in the middle of proceedings that have forced the government to abruptly drop charges.

In one trial, a Border Patrol agent testified he’d detained a defendant for only a few minutes without reading him his rights. Tapes eventually revealed the man on trial had actually been held for hours without being briefed on his rights. The government dropped the case.

In another case, prosecutors suddenly dropped charges against a woman whose trial was imminent when “they came across some issues involving the arrest report.”

The steady stream of mistakes has frustrated the judges overseeing these cases, prompting uncharacteristic scolding from the bench.

In a case against an Indian man accused of crossing the border illegally, court proceedings ground to a halt because of issues simply getting the man to court. District Judge Gonzalo Curiel said the issue underscored the types of mistakes happening regularly since zero tolerance began.

“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.”

Deprived of Rights Under an Overloaded System

In its aggressive pursuit of enforcing the law, the Justice Department might be breaking it.

As the courts and detention facilities have strained under the weight of so many cases, accusations have emerged that the system is so overloaded that it’s depriving people of fundamental rights.

San Diego-based District Judge Dana Sabraw ordered the administration to halt its practice of separating parents and children caught crossing the border. He’s now overseeing a lengthy and rocky process of reuniting families.

Meanwhile, the court has struggled to accommodate non-Spanish speakers, leading to numerous issues: “Defendants can’t relay health concerns and other issues to employees in detention facilities where they are being held, have trouble communicating with their defense attorneys – meaning they may end up spending more time in custody than Spanish-speakers with whom attorneys can explain things like plea deals more easily – and their court hearings are awkward, frustrating and drag on longer than those for Spanish-speakers because of interpretation issues.”

Attorneys have asked the court to dismiss cases in which they can’t communicate with clients because those defendants are effectively being deprived of their right to legal representation. Others have alleged the conditions in facilities where migrants are being held violate their rights.

For others, problems persisted even after their cases should have ended. In more than one case, the government has continued to hold people in custody long after they were ordered released.

When one judge learned that a man she’d sentenced to time served – meaning he could be released immediately – was still being held, she grew exasperated.

“I’ve ordered them to be released today,” she told the government prosecutors handling the case. “I ordered them to be released Friday. So, make it happen, Government.”

Migrants who’ve requested asylum in the United States have also accused the government of improperly charging them with crimes for entering the country.

Other Crimes Get Less Attention

As prosecutors have aggressively pursued immigration cases under zero tolerance, there’s evidence they’re focusing less on other types of crimes.

Cross-border drug prosecutions are going down, according to separate analyses by VOSD and the Transactional Records Access Clearinghouse, a research center at Syracuse University. The U.S. attorney’s office disputed the idea that it’s prosecuting fewer drug cases, but declined to provide any numbers.

Prosecutions for human smuggling – typically a felony – are also down.

An attorney for someone charged with a misdemeanor for entering the country illegally pointed to the fact that the person transporting his client was not charged with a crime – and argued it’s indicative of a larger trend.

“This is clear evidence that the enforcement, prosecution and the judiciary is allowing the executive branch to dictate its ‘zero tolerance’ policy toward minor immigration offenses to take precedence over more serious offenses such as smuggling and transporting offenses,” the attorney told VOSD in an email.

The U.S. attorney’s office says its approach to smuggling crimes has not changed.

Former U.S. Attorney Chuck La Bella told VOSD not long after the zero tolerance policy was announced that the criminal court system isn’t equipped to handle so many immigration cases for any extended period of time.

“The criminal justice system is not the way to regulate immigration,” La Bella said. “There is not the infrastructure to do it. The resources 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.”

Sara Libby was VOSD’s managing editor until 2021. She oversaw VOSD’s newsroom and content.

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