The public debate about recent changes in how our government handles immigration proceedings is riddled with misinformation—some of it coming from officials who crafted and are now carrying out the administration’s new "zero tolerance” policy. [Note: as of June 21, the Department of Homeland Security reported that it had temporarily halted referring all cases to the Department of Justice for prosecution.]
This FAQ will help set the record straight on some of the specific legal concerns at the core of this issue and address a narrow, but important, series of questions relating to the collateral consequences of the Attorney General’s zero tolerance policy for constitutionally sound practices in federal criminal immigration proceedings.
Relatedly, the executive order signed by President Trump on Wednesday, June 20 does not address significant constitutional concerns raised by that policy. Instead, while it may lead to fewer families being separated at the border, the order calls for the indeterminate detention of children along with their parents, in violation of a binding court settlement. The order further does nothing to address how the government will reunite already-separated families and doubles down on an enforcement approach that creates a ripple effect of practical outcomes with grave constitutional implications.
For a more comprehensive explanation of “civil” immigration detention and court proceedings, check out The Constitution Project’s “Recommendations for Reforming our Immigration Detention System and Promoting Access to Counsel in Immigration Proceedings.” Endorsed by prominent Republicans and Democrats, it addresses many of the questions that now face our nation concerning the fate of thousands of migrants awaiting a decision on whether they have a legal right to stay in the U.S. or must be deported.
Zero tolerance is exactly what it sounds like: the government has been prosecuting every person apprehended by federal law enforcement who crosses into the U.S. without documentation to the fullest extent of the law—even if they are fleeing persecution and might have a legal right to asylum, and even if they are traveling with young children.
The policy took effect in stages. First, it was tested in the Border Patrol’s El Paso sector—which includes Western Texas and all of New Mexico—from July through November 2017. Second, on April 6, 2018, Attorney General Jeff Sessions issued a memorandum that directs all federal prosecutors along the southwest border “to adopt immediately a zero-tolerance policy for all offenses referred for prosecution under section 1325(a).” But in practice, the Department Homeland Security was not referring every individual caught by Border Patrol agents for criminal prosecution. On May 7, 2018, Sessions announced that “the Department of Homeland Security is now referring 100 percent of illegal Southwest Border crossings to the Department of Justice for prosecution. And the Department of Justice will take up those cases.”
Under Presidents Bush and Obama, the Department of Justice also pursued an aggressive policy, known as “Operation Streamline,” to criminally prosecute people for the misdemeanor of illegal entry and the felony of illegal reentry. But the government generally did not refer parents traveling with their children for prosecution, and often declined to refer first-time border-crossers or asylum-seekers for prosecution. For several of the same reasons we now object to zero tolerance, The Constitution Project sent a letter to Attorney General Loretta Lynch in 2015 requesting that the Department of Justice reconsider the rapid rate of processing these misdemeanor cases.
It's important to note that while the antecedents to this crisis are found in Operation Streamline, there are unique aspects of zero tolerance that exacerbate constitutional problems in federal courts on the border and that are without comparison in our federal justice system.
“1325(a)” refers to the section of the U.S. criminal code commonly called “illegal entry.” It’s the statute that creates penalties for people entering the U.S. without a legal visa or other documentation. It’s a misdemeanor offense—think something on the same criminal level as a traffic violation—that carries a maximum potential penalty of six months incarceration. Specifically, the text of the law reads:
(a) Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts
Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.
To be clear, zero tolerance specifically targets those who have no criminal record or past history of entering the U.S. without documentation. Other provisions of federal criminal law prohibit migrants who have previously been deported from returning to the United States without permission, and include enhanced penalties for those who have re-entered the country after having been deported following a felony or aggravated assault conviction.
By aggressively pursuing “illegal entry” charges against everyone caught crossing the border, the government also appears to be sweeping up people who have legitimate claims to asylum in the U.S. Federal law allows for people who have a credible fear of persecution based on certain characteristics, such as race or religion, to make an asylum claim and ask to stay in the U.S. legally—it’s one path to residency and citizenship.
Federal regulations call for those seeking protection to approach Customs and Border Protection at U.S. ports of entry to apply for asylum, and the U.S. government takes the position that individuals who do not cross at a port of entry are in violation of section 1325 regardless of their fear of persecution. However, Article 31 of the 1951 Refugee Convention, a treaty that is binding on the United States, says that countries “shall not impose penalties, on account of their illegal entry or presence, on refugees” who enter from a country where they are in danger, “provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”
People seeking refuge in the United States may not be aware of the requirement to cross the border at a port of entry, or may not be able to safely access one. There are reports that asylum seekers are increasingly being turned away and told that there’s “no room” for them to go through these official channels—in apparent violation of the law. In some cases, this leaves migrants and their children homeless on the streets of border towns for days on end. When those desperate refugees turn themselves in to Border Patrol at a border location that is not a port of entry, they’re then charged with violating the illegal entry statute under the zero-tolerance directive and pushed into a legal process not designed address their circumstances: the criminal justice system.
Federal district courts and immigration courts are very different beasts, but a person facing criminal prosecution for illegal entry will generally have his or her case adjudicated by both. Basically, migrants must navigate their illegal entry cases in federal district court while also trying to resolve their legal status in civil immigration cases that will decide whether they’re deported from the U.S. To explain why that’s so complicated, we’ll have to walk through how each system works.
Federal District Courts
Any person facing a violation of federal criminal law—which often includes a potential sentence of incarceration—will be arraigned in federal court. This includes those charged with first-time misdemeanor immigration violations. These are courts created under Article III of the Constitution, which governs the judicial branch, and handle criminal and civil trials involving alleged violations of federal law. There are 93 federal district courts in the U.S. and over 660 federal district judgeships. Federal district judges are nominated by the President and confirmed by the Senate.
To supplement nominated and confirmed district judges, federal magistrate judges handle a variety of duties for district courts. Magistrates are appointed by the judges from each district and serve eight-year terms. Magistrates can oversee pretrial proceedings and conferences, pleas, settlements, and other matters. Most importantly in this context, they can also preside over criminal misdemeanor trials, if the parties consent to waive their right to have the case heard by a district judge. In April 2018, 6,811 of the 7,094 defendants in new immigration prosecutions had their cases filed before magistrates.
U.S. Attorneys are charged with prosecuting violations of federal criminal law. There is one U.S. Attorney for each of the 93 federal districts, who are also nominated by the President and confirmed by the Senate. As of June 18, 2018, two of the five U.S. Attorneys in the Southwest border districts were serving in an “acting” capacity: President Trump has not nominated anyone to serve as the U.S. Attorney for the District of Arizona, and the U.S. Attorney for the Southern District of California was appointed as the “acting” U.S. Attorney in November 2017, a position he may serve in for only 300 days.
U.S. Attorneys are employees of the Department of Justice, which is led by the Attorney General of the United States. U.S. Attorneys are responsible, in their discretion, for carrying out the policy directives of the Department of Justice. Remember that discretion part, it’ll be important later.
Unlike federal courts—which are completely independent from the Department of Justice (or any component of the executive or legislative branches)—immigration courts are not an independent branch of government. Indeed, they are a part of the executive branch operated by the Department of Justice.
Immigration courts handle civil proceedings that result in either a deportation order or permission to stay in the United States. Unlike a criminal proceeding, a prison sentence is not a possible outcome from these cases. For example, a person who lawfully entered the U.S., but remained in the country past the expiration of his visa, has not committed a crime. He or she has, however, violated federal immigration law and is subject to the civil penalty of being removed from the country—which means the case would fall under the jurisdiction of an immigration court.
These cases are overseen by immigration judges, who are appointed by the Attorney General and are employees of the Department of Justice; the government is represented in these cases by attorneys from the Department of Homeland Security. Immigration judges are charged with “providing fair, expeditious, and uniform application” of immigration law.
Immigration court decisions can be appealed to the Board of Immigration Appeals, a 21-member component of the Department of Justice. That Board’s rulings can be appealed in federal court, or overturned by the Attorney General. The latter procedure was recently used by Attorney General Sessions to attempt to exclude those fleeing domestic or gang violence from seeking asylum in the U.S.
The location of immigration courts within the Department of Justice is controversial—including with some immigration judges themselves. The National Association of Immigration Judges (the judges’ union) has advocated for removing the courts from the Department’s supervision. The judges argue that their status as government attorneys deprives them of powers like the ability to hold Homeland Security lawyers in contempt of court. It also leaves them subject to control by a political appointee: the Attorney General.
There’s also a significant resource problem. As of May of this year, there were over 679,000 immigration cases pending in immigration courts around the United States—more than three times as many as in 2009. On average, cases completed in Fiscal Year 2018 took 577 days to complete, ranging from 68 days in New Mexico to 922 in New York, and the backlog is growing. The cases still pending before immigration courts have already lasted an average of 722 days. Ostensibly in response to this crisis, Attorney General Sessions imposed a 700-case-per-year quota requirement on the judges. But that decision drew criticism from the judges’ union and immigration advocates, who fear it will undermine immigrants’ right to due process.
Yes. Any person prosecuted by the U.S. government in a federal district court is protected by the Constitution. Constitutional rights attach in these criminal proceedings irrespective of citizenship or immigration status. See, for example, the text of the Fifth Amendment, which refers to the rights of persons, not citizens:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Other constitutional protections include the Fourth Amendment’s guarantee against warrantless search and seizure, the Sixth Amendment’s right to trial and effective assistance of counsel, and the Eighth Amendment’s prohibition against cruel and unusual punishment (to name a few). Federal courts must also follow various federal laws on the appointment of counsel, as well as the Federal Rules of Criminal Procedure and Evidence, all of which were created to ensure that courts, prosecutors, defense counsel, and law enforcement follow the law in the investigation and prosecution of a criminal case.
6. Have there been violations of the constitutional rights of those charged under the zero tolerance policy?
Based on their defense attorneys’ accounts and audio from mass court hearings, yes. For instance, there are significant questions about whether the accused in these cases can meaningfully participate in their defense, given the speed of the proceedings, the volume of cases on the federal court’s docket, and related concerns regarding the conditions of confinement of the accused and their children.
Detainees’ right to counsel is also a major concern. This is one of the most important rights for any person facing a criminal prosecution: As the Supreme Court has stated, “Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have.” In the landmark 1963 case Gideon v. Wainwright, the Court acknowledged the “obvious truth” that “lawyers in criminal courts are necessities, not luxuries” given that “[g]overnments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime.” And the federal government, in response to Gideon, enacted a law to ensure that the accused in any case before a federal court would receive adequate counsel.
But the current pace of proceedings in federal courthouses along the border doesn’t give the accused time to mount a meaningful defense, as The Constitution Project at POGO noted in a recent letter to Attorney General Sessions:
This rapid processing system does not allow time for consultation or investigation regarding the charges, for filing pretrial motions to suppress evidence or statements due to constitutional violations, or for discussing consequences of the conviction and potential avenues for relief. For example, on one day in April in Brownsville, Texas, there were 41 illegal entry cases; one day in June at a federal courthouse in McAllen, Texas, 71 migrants awaited a hearing. Defenders have only a couple hours to meet with all those awaiting trial, affording them just a few minutes to speak with each client. Potential defenses—such as being a juvenile, mentally ill, or eligible for citizenship or asylum—slip through the cracks. Because the vast majority of these cases are resolved via plea bargain and due to the lack of individualized defense in cases that go to trial, potential legal issues may not be preserved for review on appeal.
The practical repercussions are dire—and already happening, according to a letter sent by Reuben Cahn, Executive Director of the federal defenders’ office in San Diego, to the Chief Judge of the United State District Court for the Southern District of California. They include:
- Misdemeanor defendants being put into a coercive arrangement where those who agree to plead guilty often receive time served, but those who invoke their right to trial face remaining locked up until that trial—compromising the defendant's ability to “voluntarily” waive that constitutional right.
- Defense counsel being unable to have substantive discussions with detainees held in remote facilities before initial bond hearings or even before trial.
- Arrestees being “held in Border Patrol outstations for days without adequate clothing, blankets, food, hygiene, or medical care.”
The lack of individualized defense in these situations—virtually all of which are resolved through mass plea bargains—also means that may not be properly documented if needed to appeal. Further, there have been reports of a lack of interpreter for those defendants who are not native English or Spanish speakers, resulting in serious communication problems for counsel assigned to represent them--not to mention raising major doubts about whether these defendants have understood the proceedings and their rights.
The involvement of children in these cases only exacerbates many of these problems, especially for the thousands of families already separated. Parents have been forced to decide whether to plead guilty or not guilty, and make decisions that will likely get them removed from the country without even being told basic information about the location and welfare of their children, or the effect of a guilty plea on their opportunity to reunite. This robs those defendants of the ability to make an informed decision and fully voluntary waiver of their right to a trial.
They are duty-bound to intervene.
A prosecutor’s role, above all, is to seek justice. A critical component of this responsibility it to ensure that defendants’ constitutional rights are safeguarded and that procedural justice is afforded in each case.
The U.S. Attorneys’ Manual advises that the specific duties of a prosecutor must viewed in the broader context of his or her duty to “mak[e] certain also that the rights of individuals are scrupulously protected” (emphasis added). The National Prosecution Standards, produced by the nation’s largest association of prosecutors—The National District Attorney’s Association—describe it this way: “[a] prosecutor should respect a suspect’s and defendant’s constitutional right to the assistance of counsel…[and] should also take steps to ensure that those persons working at his or her direction respect a suspect’s and defendant’s constitutional right to the assistance of counsel” (Standard 2-7.1).
Federal law and the Federal Rules of Criminal Procedure also require federal court judges to ensure that indigent defendants are represented by counsel and have access to needed services as part of their defense (among other procedural obligations meant to ensure judges conduct proceedings in a manner consistent with the Constitution). The Federal Rules of Evidence also ensure that courts do not allow in evidence or use procedures that may violate the law.
So what intervention is appropriate when court procedure violates the Constitution?
That’s a tougher question.
In an individual case, a magistrate or district court judge must inquire about the defendant’s understanding of the proceedings and ensure that any defendant entering a plea of guilty does so knowingly and voluntarily. But there is reason to believe that the en masse hearings prevent a judge from making an individualized determination of whether a defendant understands the rights he or she is waiving when pleading guilty. In fact, under Operation Streamline in 2013, a federal appeals court found that a judge had failed to do this very thing when she did not question a defendant individually on whether the defendant understood her constitutional rights upon entering a guilty plea en masse with several others convicted under illegal entry charges.
Of course, if an indigent defendant stands before the court and has no lawyer, the court must ensure appointment of counsel. A trial judge, however, will not necessarily be privy to conduct that constitutes deprivation of the right to effective counsel (as much of a lawyer’s actual lawyering and investigation does not occur in court). This is why claims of a Sixth amendment violation of effective counsel come up on appeal (although the bar is very high for relief on appeal, too).
So what to do about a whole class of individuals whose attorneys can’t provide competent lawyering under the conditions created by the zero tolerance directive? In states and localities where defendants have been systematically denied the right to effective counsel, defenders have had some success in suing the government to protect the right to counsel. Some state courts have also granted defenders’ motions to withdraw from cases because the defenders carried too many to be able to competently and effectively represent each client. This kind of order typically requires the government to provide more funding for competent representation of the accused, and can mean that the prosecutor’s office must exercise greater discretion in deciding which cases to pursue.
However, the en masse hearings, waivers of trial, and sentencings—and the related triaging of cases by defenders—are the direct result of the U.S. Attorney Offices’ implementation of the zero-tolerance policy. Ultimately, these prosecutors’ decisions on who and what to charge mean that they have the greatest amount of power in the federal criminal justice system. Of course, this system is reliant on an expectation that nearly all charged defendants under 1325(a) will enter a guilty plea. Indeed, if every person charged under zero tolerance invoked their constitutional right to trial, the system would likely come to a screeching halt.
No, but refusal to do so might result in the loss of their jobs.
The U.S. Attorneys’ Manual, which governs the role and conduct of U.S. Attorneys throughout the United States, states that “[i]n the exercise of their prosecutorial discretion, United States Attorneys construe and implement the policy of the Department of Justice” (emphasis added). While the Attorney General sets the policy objectives for the government in the exercise of its prosecutorial function, United States Attorneys possess wide prosecutorial discretion “in determining when, whom, how, and even whether to prosecute for apparent violations of federal criminal law.”
The U.S. Attorneys’ Manual, as well as national standards by the ABA and the country’s most prominent prosecutors’ association, address the critical need for a prosecutor to appropriately exercise his or her discretion to ensure the fair administration of justice, protection of rights, and prudent use of resources.
So, while the zero-tolerance policy would appear to eliminate any discretion by U.S. Attorneys when it comes to low-level immigration offenses, professional and ethical obligations cannot be overridden by a political directive. Moreover, when U.S. Attorneys—as the front line of zero tolerance—observe that a policy of the Department of Justice is in conflict with the imperatives of due process and effective counsel set forth in our Constitution, the latter must win out.
Further, as a letter by former U.S. Attorneys appointed by Republican and Democratic presidents alike points out, the exercise of discretion is one of the chief means by which a prosecutor can effectively and carefully manage limited resources:
“It is a simple matter of fact that the time a Department attorney spends prosecuting misdemeanor illegal entry cases, may be time he or she does not spend investigating more significant crimes like a terrorist plot, a child human trafficking organization, an international drug cartel or a corrupt public official. Under [the] Zero Tolerance policy, firearms cases, violent crime cases, financial fraud cases, and cases involving public safety on Indian reservations all take a back seat to these lesser, weaker misdemeanor cases.”
In fact, the zero-tolerance policy itself appears to acknowledge the need for some leeway, as it instructs U.S. Attorney offices to adopt a zero-tolerance policy of cases referred for prosecution “to the extent practicable.”
The Constitution Project at POGO submitted a letter to each of the five United States Attorneys in the border districts expressing concern about these offices’ continued implementation of the policy in light of the serious constitutional concerns it has created. We urged each office to “exercise the broad discretion appropriately afforded to [it] to protect the rights of the accused and ensure due process for all who may be referred for federal prosecution, irrespective of the nature of the charges or political directives.”
Thus far, it appears all five U.S. Attorney Offices continue to carry out the zero-tolerance directive.
Despite ethical obligations, taking a position at odds with the Attorney General’s position can be perilous nonetheless, even if it is backed up by resource considerations, which area reasonable factor to weigh in the exercise of prosecutorial discretion.
A case during the George W. Bush administration is illustrative. The Justice Department’s Office of Inspector General and Office of Professional Responsibility issued a joint report on the controversial firings of nine U.S. Attorneys under President Bush in 2006. One of those firings was of U.S. Attorney Paul Charlton in part because “he disagreed with senior Department officials over a decision to seek the death penalty in an Arizona case.” In the report, one high-level official is quoted as saying of Charlton, “I don’t want to accuse him of anything but I find it very difficult to believe that he was doing anything but trying to circumvent the AG’s ruling.” She said believed Charlton “obviously has a problem with the death penalty, either because of the resource issue or personal philosophy.” The report cites another potentially motivating factor in his firing, according to a chart created by Monica Goodling, a political appointee: “Charlton’s alleged resistance to prosecuting obscenity cases identified as significant by the Department’s Obscenity Prosecution Task Force.” Charlton told investigators “he initially expressed reluctance to assist the Task Force because he believed his office did not have sufficient resources to take on the additional cases the Task Force had identified.”
Prior to the firings under President George W. Bush, it should be noted that U.S. Attorneys have hardly ever been removed for reasons unrelated to misconduct and the reasonable exercise of prosecutorial discretion is not, in itself, misconduct. A 2007 report by the Congressional Research Service found that over a quarter century—1981 through 2006—out of 486 Senate-confirmed U.S. Attorneys, only one was known to have been fired for reasons not related to misconduct (the report’s author could not learn the reasons in three cases where U.S. Attorneys resigned before serving their full four-year term). That one case involved William Kennedy, U.S. Attorney for the Southern District of California, appointed by President Ronald Reagan. The Christian Science Monitor reported that Kennedy was dismissed in 1982 “for charging that the Justice Department, at the request of the Central Intelligence Agency, was blocking his attempt to prosecute Mr. [Miguel] Nassar [Haro], because he had been a key CIA informant on Mexican and Central American affairs.” While retribution for discretionary decisions is rare, the threat of repercussions may still make U.S. Attorneys less willing to stand up to unjust policy directives.
While Congress has, thus far, been unable to come to agreement on reforming immigration laws, the consequences of the zero tolerance policy crystallize a few areas of serious concern in need of consideration by Congress.
Chief among these areas is the very existence of illegal entry as a criminal offense. Much like the problem faced by states that make driving without a license or some other non-violent, petty offense a crime with the possibility of jail time, section 1325 creates numerous burdens on the justice system. Federal courts are bogged down with adjudicating a small-time misdemeanor at the expense of other criminal and civil issues facing individuals and society. Enforcement of section 1325 means federal prosecutors must redirect resources away from investigating serious border-related crimes, like human smuggling, drug trafficking, and gang activity; and, as discussed above, it creates a burden on defenders that impacts their ability to provide competent representation under the Sixth Amendment. Moreover, the civil immigration system already handles removal proceedings for persons caught entering the country.
All of this raises the question of whether this crime should be on the books in the first place.
Moreover, it’s the duty of Congress to conduct oversight of any federal policy leading to violations of the Constitution. In fact, the problem of overwhelmed court dockets involving misdemeanor cases was the precise issue examined by Chairman Charles Grassley (R-Iowa) in 2015, when he held a Senate Judiciary Committee hearing on the right to counsel for misdemeanor defendants in state courts. In his remarks, he argued that “the Supreme Court’s Sixth Amendment decisions regarding misdemeanor defendants are violated thousands of times every day.”
And in a 2013 letter, in response to threats of furloughs and dangerous budget cuts to the federal defender program under the budget sequester, Senator Chris Coons (D-Del.) and then-Senator Jeff Sessions (R-Ala.) lauded the importance of effective defense counsel, saying “quality representation... promotes the rule of law and safeguards constitutional rights.”
Against this backdrop, it seems that there should be interest among Members of Congress to ensure that the Sixth Amendment is respected in federal courts on the nation’s border.
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