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Border Convictions: High Stakes, Unknown Price

A U.S. Border Patrol agent casts a shadow below a group of migrants detained in Arizona in 2006. To prosecute everyone caught crossing the border illegally in the Tucson Border Patrol Sector, the sector would need a federal justice system twice the size of the rest of the country's.
Gregory Bull
A U.S. Border Patrol agent casts a shadow below a group of migrants detained in Arizona in 2006. To prosecute everyone caught crossing the border illegally in the Tucson Border Patrol Sector, the sector would need a federal justice system twice the size of the rest of the country's.

This is the last in a three-part series that takes an in-depth look at a little-known program that is pushing the boundaries of the American justice system along the U.S.-Mexico border: Operation Streamline. NPR's Southwest correspondent Ted Robbins has spent the past three months analyzing court data and documents on the program.

The Border Patrol program called Operation Streamline pushes immigrants caught entering the country illegally through the federal court system -- at speeds unheard of before. They exit convicted criminals. The program raises concerns about due process and adequate representation. And no one can say for sure how much it costs.

A spokesman for the Border Patrol says "no budget or monies are associated" with Operation Streamline. But Homeland Security Secretary Janet Napolitano, who's in charge of the Border Patrol, says "it is a very expensive program per head because it does implicate use of the judicial system."

No one knows how much Operation Streamline costs. The Border Patrol may not be spending anything extra on the program, but it hands off its prisoners to the U.S. Marshals Service, which is part of the Justice Department. That department and the federal courts have to provide transportation, housing, food, interpreters, defense attorneys, courtrooms, clerks and judges.

Even lawmakers who want to expand the program don't know how much that costs. Arizona Republican Sen. John Kyl is a big supporter of Operation Streamline. He got Congress to order the administration to come up with a cost.

"We've been trying to find this out for a year and a half," Kyl says, "and neither the Department of Homeland Security nor the Department of Justice will tell us."

In fact, the government is spending $1 million on a study to find out how much homeland security operations impact the Justice Department. Still, some members of Congress like Kyl want to expand it.

"Then we have to guess at it and just say, 'OK, here, we'll give you $50 million, how much will that do?' " Kyl says.

The Tucson Example

Kyl is mainly interested in expanding Operation Streamline in the Tucson Border Patrol Sector, where nearly half of all illegal immigrants crossing the border are caught.

Right now, prisoners are brought to the Tucson federal courthouse by the busload. The courthouse was built to house a maximum of 100 prisoners awaiting their court appearances. These days, Assistant Chief U.S. Marshal Ray Kondo says that's a minimum.

"Particularly in the mornings, we'll have as many as 200 prisoners in here," he says.

Every morning a courtroom becomes a makeshift jail. The courtroom is filled with small tables where lawyers sit across from their clients. Others meet in the pews normally reserved for spectators.

The prisoners in the courtroom were picked up under Operation Streamline. They were charged with entering the country illegally, a misdemeanor. They'll be arraigned, convicted, and sentenced in groups by the afternoon. Every weekday 70 people are processed this way. That's on top of all the court's other cases. The Border Patrol would like to increase that to 100. Others want to double or triple it. Kondo has to figure out how. One plan would have two separate Operation Streamline proceedings running at the same time.

But even tripling the number of Operation Streamline defendants wouldn't come close to meeting the program's stated goal of zero tolerance: prosecuting everyone caught crossing illegally. In the Tucson sector, that would currently be nearly 1,000 prosecutions every weekday -- a quarter-million people a year.

The presiding federal judge for Arizona, John Roll, says it's his job to carry out policy, not to make it. But, Roll says, prosecuting everyone is not possible.

"You can't prosecute all 250,000 people in Arizona. We would have more cases than the rest of the entire country. You would take the resources now for the entire country and just double it and put them in Arizona," he says.

In other words, to prosecute these misdemeanors, Arizona would need to have a federal criminal justice system twice the size of the rest of the country. No one has contemplated what that would cost. There is one estimate of how much it would cost just to detain and hire a lawyer for every illegal immigrant caught entering the Tucson sector: close to $1 billion a year. That estimate was done by the Warren Institute at the University of California, Berkeley law school.

Making Use Of Resources

David Sklansky, a former federal prosecutor who is now a law professor at UC Berkeley, says the federal courts have already been transformed by the rise in immigration prosecutions.

"We've now reached a point where immigration prosecutions are not just the largest category of federal criminal prosecutions; they are a majority of federal criminal prosecutions," Sklansky says. "And that doesn't strike me as a good use of our prosecutorial machinery."

Operation Streamline, just one of those programs, is already a huge burden on federal courts along the border. And even with no clear estimate of what it costs now, the government wants to expand it.

Copyright 2023 NPR. To see more, visit https://www.npr.org.

As supervising editor for Arts and Culture at NPR based at NPR West in Culver City, Ted Robbins plans coverage across NPR shows and online, focusing on TV at a time when there's never been so much content. He thinks "arts and culture" encompasses a lot of human creativity — from traditional museum offerings to popular culture, and out-of-the-way people and events.