It’s not exactly what you want to read about during the holidays, but here’s something to chew on that I’ve been researching:
In the last four years, Texas and Arizona have been literally capitalizing on immigrants as a means to boost their faltering economies through a court process called Operation Streamline. By prosecuting migrants en masse, Streamline clearly violates the Constitution and due process. By stripping defendants of the basic rights to trial, and being presumed innocent until proven guilty, Streamline makes a mockery of the Constitution. The question is, if the Constitution becomes a mere facade, what force then shall govern our criminal justice system? Money, it seems.
Each day, migrants are brought in from the border, about 70 a session, and are tried and convicted en masse. They are shackled at the waist, wrists, and feet, in order to comply with the US Marshall requirement that there must be at least two Marshalls per prisoner in the courtroom, or else shackles must be used. Public defender Erendira Castillo-Reina, or Yendi as people call her, feels connected to the migrants she must represent in Streamline, having been naturalized herself in 1995.
“With people being processed all in one day, we don’t know how long they’ve been in the desert. We don’t know how much, if anything, they’ve had to eat. We don’t know what trauma they’ve gone through.” Castillo-Reina says. “I’ve had clients who have stumbled over people who’ve died in the desert. A woman last week told me she came across another woman who had crossed with her child, and her six-year-old had died out there. The body of the child was left there.”
The defense at Streamline is made up of public defenders and CJA lawyers, hired to handle the heavy load of prisoners. Defendants are brought in the morning of trial, and only get about 30 minutes to discuss their options with counsel. Unfortunately, some of the lawyers are notoriously indifferent to their clients, and witnesses at trial often see them checking their Blackberries, reading the news, and playing computer games. “Because there aren’t generally accepted standards as to what lawyers should do, what I think is ok might not necessarily be what another lawyer thinks is ok,” says a politic Castillo-Reina.
Making the most of the short time allowed, Castillo-Reina spends it explaining the process and what is happening to the defendants’ rights in the bargain. Then she talks with each person individually about where they were born, their current circumstances and family life. She guesses that many who go through Streamline have no idea what is happening to them. “I want them to hear the process at least once,” she says. “But I usually have to tell them the same thing: that it’s in their best interest to waive their rights and plead guilty. The only defense would be citizenship or if they have papers.”
Last year, a colleague named Jason Hannan requested personal hearings for his clients, but the judge denied the request. He appealed those cases, asserting that Streamline’s characteristic en masse proceedings are in violation of Rule 11, which provides that each defendant be personally addressed by a judge. Specifically, Streamline clients are encouraged—or in Yendi’s perception, coerced—into accepting a plea bargain which exchanges the initial felony charge of illegal entry for a misdemeanor charge. Sounds like a deal… the only catch is they must give up all rights to a trial, or any possible appeal. And, when such a change of plea is made, Rule 11 of due process requires that it happen “individually between client and magistrate.” Operation Streamline clearly does not comply.
On December 2, 2009, the 9th circuit court handed down a decision—it essentially opined that the en masse proceedings are indeed in violation of Rule 11, but that it fell under the “no harm” clause, because the defendants would likely plead guilty in any case. “There’s a standard in the legal world called ‘harmless error,’” Castillo-Reina explains, “And it’s basically a big ‘so what?’ because they were gonna plead guilty anyway so what’s the harm? No harm, no foul.”
But our Constitution provides a right to trial and appeal as one of its basic tenets, and hanging it on a “no harm” explanation seems careless to say the least. Castillo-Reina says, in a recent email, “They’ve
shifted the burden to the defendant to show harm. But how do you show harm when the defendants are shipped off before we have a chance to gather that evidence? How do you show harm to something as evanescent as Constitutional rights? If we start diminishing the protections of the Constitution to illegal border crossers, where will it end?”
After that decision, it seems the court made it a point to change the face of Streamline presumably for PR purposes—at my last attendance, the judges were noticeably folksier in their demeanor, stating clearly the rights that the defendants are giving up and asking if they understand, (though en masse). The judges differ slightly, but one recently said, “We want to make sure that you are giving up the right to trial freely, voluntarily, and knowingly. If this is not the case please stand up. Don’t be bashful.” No one stood.
Also, since that decision many judges do not give prison sentences anymore. In the past, many defendants would be sent to Florence or Eloy to spend up to six months in a CCA detention facility before they were deported. Now, however, if it’s the defendant’s first offense, he or she may be let go with a fine. According to Rule 58, if there is no prison term assigned, then the requirement in Rule 11 of an individual change of plea may be waived because there is no liberty interest at stake. So, the courts are making an effort to inch closer to operating within the guidelines of the constitution, but the injustices are still there. After witnessing Streamline before the decision, the version the judges are now performing seems just that—a performance or a façade. It’s merely a PR front.
Behind all this is the ugly fact that Streamline brings in an enormous amount of money into Arizona’s economy (as does all immigration enforcement). One judge estimated to Castillo-Reina that the Federal Courthouse injects about $20 million into Tucson’s economy a month—including detention by CCA, legal costs, medical costs and Border Patrol costs. This, in a bottomed out economy, in a state that has limited resources to begin with, is a major boon to some. “My personal feeling is that this is just an industry now,” says Castillo-Reina. “We have an unlimited number of people who are trying to cross, and we decide where they’re going, because we’re persecuting a population that has no voice and no vote. Historically the immigrant has been demonized, and this allows us to capitalize on it, literally.”
News commentators like Glenn Beck and Lou Dobbs paint a picture of an immigrant population that’s either highly criminal or lazy, merely wanting to come here and live off our welfare and health care system. But the truth, according to Castillo-Reina, could not be more disparate.
“You can’t tell me that Streamline is working because, if you’re hungry, or your family is hungry, or you don’t have a place to live, or your family lives across the border, it doesn’t matter who you are, you are gonna try to cross anyway. If it’s a difference between life and death, you’re gonna do what you have to do to survive,” she says.
Throughout her close work with migrants, Castillo-Reina has not found any evidence that people come here to get welfare benefits. They come to work hard and they’d be happy to pay taxes, if they were given the chance to become legal. She related the story of a recent client, a young man of 21 from the mountains of Mexico, who explained, “It’s not that we want to come here. It’s like we’re little animals just trying to migrate through the seasons, just trying to find a way to keep our bellies full. We’re like little ants, coming out of the mound to look for food.”