Grinding Justice

Operation Streamline costs millions, tramples the Constitution, treats migrants like cattle, doesn't work

"If I thought that due process suffered," he insists, "I certainly would oppose it. But I don't think that is the situation."

He points out that defendants in Streamline have waived their rights to an individual hearing and to a trial.

"Most of the individuals prefer [Streamline]," he says, "because it means they're going to have their cases resolved speedily."

Brian Stauffer
A bus for private prisons giant Corrections Corporation of America picks up migrants sentenced to time in custody by a Tuscon magistrate
Stephen Lemons
A bus for private prisons giant Corrections Corporation of America picks up migrants sentenced to time in custody by a Tuscon magistrate

Therein lies the rub, insist Streamline's disparagers. Defendants have to knowingly and willingly waive their rights. But with Streamline, defendants have little choice. Demanding a trial would mean a month or more in custody awaiting a trial date, far more time than a day or two of time served.

It's no wonder, then, that 99 percent of all Streamline defendants plead guilty; individual plea hearings or trials are rarities.

Roll's rationale for the program doesn't impress Murphy.

"It strikes me as sad," the professor says, "that the defense of a system that cannot afford to give every person the justice they're entitled is that 'Well, at least this is faster.'

"That just points to the fundamental problem," she continues. "If the system cannot accommodate the volume it seeks . . . without fundamentally compromising the principles that make the system fair to begin with, then . . . something is wrong."

Actually, the Border Patrol would like to double or triple the number of Streamline defendants. And there have been discussions about increasing the total to at least 100 per day in Tucson.

Murphy and others assert that Streamline defendants are not knowingly and intelligently waiving their rights. Similarly, they contend, the defendants' Sixth Amendment right to counsel suffers from the Streamline process.

Indeed, several federal public defenders interviewed express doubts Streamline clients are receiving the legal representation they need.

Juan Rocha is one such lawyer. He has worked in both the Yuma and the Tucson courthouses on Streamline cases, and, he says, particularly in Tucson's factory-like churn, he feels helpless to assist Streamline defendants.

"In Tucson, you're basically shepherding people to prison or to deportation proceedings," he says, "because you're not really doing much for them."

William Fry, federal-public-defender supervisor in Del Rio, says the number of Streamline cases in the Texas court fluctuates, from a low of 13 to 20 per day to a high of 80 to 110.

Because his lawyers get to interview their clients only the day before they go in front of a judge, there's little time to research the prosecution's claims against the defendant or to suss out possible citizenship.

"The defense lawyer in many ways has to buy a pig in a poke," Fry says. "We have to take at face value what the government says it has on this guy when we make our decisions. And we only have a day to do it in."

In Tucson and Yuma, defense attorneys have even less time, as they meet Streamline clients on the mornings of their hearings. In Tucson, lawyers can consult with their clients one-on-one. In Yuma, federal public defenders may have to address defendants in groups of four to six.

Rocha says he knew of several cases in Yuma in which the Border Patrol had, at one point, U.S. citizens in custody, ready to be presented to the Streamline judge.

Once someone is identified as a citizen, the Streamline charges can be dismissed. But determining citizenship can be complex and time-consuming. In fact, defendants may not be aware they have a citizenship claim.

And there are other problems that arise when a lawyer doesn't get to spend enough time with a client.

For instance, charges against juveniles, those not competent to stand trial, or others who speak indigenous languages, rather than Spanish or English, are supposed to be dismissed by the prosecutor, according to an understanding between federal attorneys and defense lawyers in Streamline.

Heather Williams, a supervisor in the Tucson public defender's office and one of Streamline's most outspoken critics, says this does not always happen. The very nature of the mass proceedings and the speed with which they occur do not allow defense attorneys time to investigate each case thoroughly.

"We find people who turn out to be juveniles," she says. "There's a whole other proceeding that's supposed to happen if somebody's a juvenile in federal court charged with a crime. And we find out after the fact."

Because of the language gap (some defendants speak indigenous languages such as Mixtec or Olmec), Williams says, her office sometimes learns afterward that a client had no idea of what was going on during a Streamline hearing.

She asserts that in post-conviction conversations with clients, public defenders may discover that defendants were not competent to go through the hearing and waive their rights.

Williams decries what she sees as the inhumanity of Streamline's conveyor-belt approach to justice. She bemoans the shackles and the leg irons each defendant must wear.

"They are truly being treated like cattle," she says.

The U.S. Marshals Service counters that all defendants in the Tucson court, Streamline and non-Streamline, are so restrained. The marshals cite crowding issues in the court, which operates at or above capacity.

Certainly, Streamline defendants are not known to be aggressive. But with three or four marshals in the Streamline court operating with three Border Patrol agents as backup, if all 70 defendants were unrestrained and wanted to pull a reenactment of the Spartacus uprising, the marshals and agents could be overwhelmed.

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