Grinding Justice

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

During one of the appearances, Burke stated his office filed 22,000 misdemeanor immigration cases and 3,200 immigration felony cases in fiscal 2009. It's safe to presume that most, if not all, of the misdemeanor cases were from Operation Streamline.

McCain and Kyl claim they believe Streamline works and want to give the program the resources it needs. This while Democrats such as Schumer acknowledge problems with Streamline yet allow the program to operate.

The Border Patrol's claims to the contrary, there's little evidence Operation Streamline is a deterrent. For instance, Border Patrol numbers have shown a 75 percent decline in apprehensions in the Del Rio sector since Streamline began there in 2005. But from 2000 through 2004, apprehensions in the Del Rio sector declined by 65 percent.

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

Lydgate's study for the Warren Institute eviscerated Streamline's efficacy as a deterrent, observing that large fluctuations in Border Patrol apprehensions preceded Streamline's implementation.

"The general decline in border apprehensions," Lydgate wrote, "did not begin in 2005—when [Homeland Security] introduced Operation Streamline—but in 2000. Apprehensions reached a decade peak in 2000, then steadily decreased till 2003, went up slightly in 2004 and 2005, and decreased again between 2005 and 2008."

The Border Patrol's assertions of Streamline's success rely upon a logical fallacy, one that assumes Streamline has caused the decline in apprehensions, even when there are more powerful factors at play—including the economic downturn. Lydgate's study, for instance, offers a chart showing that "border apprehensions have largely [mirrored fluctuations in] the U.S. job market since 1991."

A supplemental study by Lydgate analyzed border enforcement in the U.S. Attorney's Office for the Southern District of California, which does not participate in Operation Streamline.

She found that from 2008 to 2009, apprehensions declined by about 25 percent in that district, observing this "indicates that declining apprehensions in other border sectors . . . are likely not a result of Operation Streamline."

Lydgate reported that the district generally does not prosecute first-time border crossers, focusing instead on "crossers it believes are most likely to cause violence."

Yet the Southern District of California ranks "first nationwide in per capita prosecutions of alien smuggling . . . and importing controlled substances," according to Lydgate.

Also, the Border Patrol claims a 12 percent recidivism rate for Streamline. But critics object, saying a realistic rate cannot be determined when the Border Patrol cannot estimate how many migrants elude capture.

"From the perspective of defense attorneys," Lydgate says, "they do see people who come back again. There's no doubt that that happens."

Both judges Irwin and Velasco acknowledge seeing Streamline defendants return to their courts. And as has already been discussed, 30 percent of the convictions in the Tucson version of Streamline involve people charged with felony reentry. Even if this number is artificially manipulated by Border Patrol, it suggests that recidivism is higher than 12 percent.

Lydgate contends Streamline is a drain on resources that could otherwise be used to fight more serious criminal activity. And there's substantial evidence that Streamline has overtaxed the criminal justice system.

Roll, for instance, says the Tucson court is basically running at capacity and doesn't have the space to increase even to the 100 cases per day the Border Patrol would like to see.

"We have absolutely no free space in the DeConcini courthouse in Tucson," Roll says. "All courtrooms are fully utilized."

Assistant Chief Deputy Marshal Kondo likened the moving of prisoners through the courthouse to choreographing a ballet. The capacity of the courthouse's small cell block is rated at anywhere from 88 to 102. But Kondo regularly is dealing with 250-plus prisoners who go through that cell block each day.

Kondo's boss, U.S. Marshal Gonzales, says marshals already have a full plate.

"If it was just Streamline," Gonzales says, "if that's all we had to deal with, it wouldn't be a problem."

That is, Streamline requires a certain number of Gonzales' men each day. Those are men who could be doing more important work—including chasing escaped fugitives.

Streamline's strain is felt beyond Arizona. Lydgate asserts that prosecutions of "petty immigration-related offenses" have skyrocketed 330 percent in border courts from 2002 to 2008.

The Berkeley law school researcher quotes a 2008 report from the Administrative Office of the U.S. Courts as stating, "There are simply not enough jail beds, holding cells, courtrooms and related court facilities along the border to handle all the cases that the government would like to prosecute under [Operation Streamline]."

In 2008 testimony before the U.S. House Subcommittee of Commercial and Administrative Law, Williams summed up Operation Streamline in words that still ring true.

"Operation Streamline," she said, "may well be one of the least successful, but most costly and time consuming ways of discouraging [illegal] entries and reentries."

Similarly, Lydgate points out that hunger and life-or-death necessity trump any deterrent effect caused by a possible criminal sanction.

"Streamline is just not going to deter someone who needs to find work," Lydgate says. "Some people will come back again and again, even if they understand they may be prosecuted again."

If Williams and Lydgate are correct, why does the Obama administration continue to back this pricey policy lemon?

Perhaps there are simply too many who profit from Streamline.

Certainly, the Border Patrol benefits from this rationale for its increasingly bloated budget—nearly $3.6 billion for fiscal year 2010, with 4,290 Border Patrol agents in Arizona and more than 20,000 agents nationwide.

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