What's Clogging the Courts? Ask America's Busiest Judge

July 23,2008 —, 2008 -- Judge Robert Brack is the busiest federal judge in the United States. From his bench in the bordertown of Las Cruces, N.M., Brack expects to hear between 1,000 and 1,200 cases this year, more than twice the average number tried by district court judges.

Almost all of his cases have one thing in common: they involved illegal immigrants reentering the United States, looking for work and finding jail time instead.

"I'm on the bench every morning of every day for several hours, sentencing defendants. A very high percentage of those involve Mexican citizens charged with felony reentry. Then I take a break, come back and do it some more," said Brack, who was ranked No. 1 in the country in overall caseload, according to federal statistics and Syracuse University.

Immigration-related felony trials have been on the rise for several years, straining the resources of courts and prisons from Texas to California and illustrating the difficulties of policing the country's primary point of entry for illegal immigrants and drugs.

All along the 2,000-mile U.S.-Mexico border, courts are clogged with immigration-related cases. As a result, the region's courtrooms handle a disproportionate amount of the country's crime. Just five of the country's 94 districts -- South California, New Mexico, Arizona, West Texas and South Texas -- handle 75 percent of all the criminal cases in federal district courts around the country.

Rising Case Numbers Flood Courtrooms

The number of immigration trials have spiked since 2005, a result of a federal program called Operation Streamline that puts illegal immigrants on a fast track to prosecution, detention and deportation.

In the first seven months of 2008, the government reported 38,443 new immigration prosecutions. The Transactional Records Access Clearinghouse, a data research organization at Syracuse University, estimates there will be 65,902 immigration cases this year, a 65 percent increase over last year and a 216 percent increase over 2003.

For the Department of Homeland Security, Operation Streamline is an indispensable tool needed to secure the border. In the past year, the government says, the deterrent of prison time has dramatically decreased the number of the people trying to cross the border from Mexico.

Critics, however, contend that the increased number of cases strain an already burdened judicial system, depriving lawyers and judges of ample time to hear cases and denying defendants the right to a fair trial.

They also contend that resources have been diverted from pursuing offenders more dangerous than the typical migrant worker and that prosecutors cannot use their own discretion in choosing which violators to go after.

"I'm all for national security and border security," said Brack, who was appointed to the bench in 2003 by President Bush. "The people I generally see are humble people who have no criminal offenses other than coming back and forth to pick chili. We're spending a lot of time catching these folks when we could concentrate on those penetrating our border to do us harm."

The Arizona Example

In a speech on immigration last month, Homeland Security Secretary Michael Chertoff said the program was vital to border security.

"We have seen significant reductions and apprehensions, a decrease in the recidivism rate of aliens prosecuted under the program, meaning once they get prosecuted, they stop trying to come in again, and a reduction in smuggling — in smuggling organizations and illegal entries in the relevant urban areas," he said.

"If you look at apprehensions, you could see a steady decrease from the time we began these initiatives to the present. The reason this works is because these illegal migrants come to realize that violating the law will not simply send them back to try over again, but will require them to actually serve some short period of time in a jail or prison setting, and will brand them as having been violators of the law," he said.

Homeland Security points to one county, Yuma, Ariz., as proof of the operation's success. In 2006, border patrol officials there apprehended 118,459 illegal aliens. Following Streamline's implementation in 2007, apprehensions fell to 37,992.

"Is Operation Streamline working?" asked Jaime Castillo, a U.S. Border Patrol spokesman. "Absolutely it is. Along with increased manpower, increased technology and increased infrastructure, Operation Streamline has allowed us to gain operational control of our borders."

Others, however, are less certain that Streamline can be credited for a decrease in apprehensions in the past year and contend that looking just at apprehensions, rather than who is being apprehended, misses the point.

"A lot of the recent reductions can be attributed to the poor economy," said Kathleen Walker, an immigration lawyer in El Paso, Texas, and former president of the American Immigration Lawyers Association.

"Chertoff is just looking at the numbers, and as a result is missing what really matters. Benefit analysis is thrown aside in an effort to get bigger numbers. They're using a big hammer to get as many prosecutions as possible, but they should be using a better hammer to go after drug traffickers and human traffickers," she said.

As a result of Streamline, prosecutors, she said, are not permitted to use their discretion in choosing which cases to pursue. And as a result of bloated caseloads, defense attorneys cannot adequately prepare their cases.

"Just because the courts are loaded up with cases, doesn't mean they're loaded up with criminals," she said.

More Cases, More Judges

In March, the Senate approved a bill to appoint 38 more district judges. But seats won't be filled until at least 2009.

In Las Cruces, Brack is the only district judge. There are also five federal magistrate judges there who hear most of the misdemeanor cases involving first-time border violators. But Brack hears the felonies -- aliens caught crossing the border a second time.

Many of those aliens have spent nearly their entire lives on the U.S. side of the border, he said.

"A typical case is a 22- or 23-year-old father of two who was brought here when he was 2 or 3, lived here his entire life, went to Las Cruces High school and has two kids who are American citizens. He gets, say, a DWI, and all of a sudden his lack of status is discovered and he is sent back to Mexico, even though he knows nothing about the country, has no family there, and barely speaks Spanish. What else is he going to do but turn around and cross the border again? And if he does and he gets caught, that's a felony with real prison time and another deportation," he said.

"I sentence a kid matching that profile five times a week. Those cases hurt, they break your heart."

Illegal immigrants attempt to cross the border multiple times because they cannot afford not to, Brack he said. Poor migrants "come here for the same reason people have come to America for 100 years."

"There is talk of a mandatory minimum sentence of five years for first-time offenders. If that happens, we better start building more jails. If word got out maybe it would staunch the flow. But people are going to continue to try to come here because it is sometimes their only option to feed their families and support their communities. For generations we've let them come, we courted them with the bracero program and when we've had to, we returned them. Now we're pulling the rug out and changing the rules overnight," he said.

The solution to curbing illegal immigration, said Brack, is cracking down on employers.

"My theory is if there weren't jobs, they wouldn't come. In 5,000 cases, I have never once sentenced an employer in the U.S. for hiring an illegal. We have an insatiable demand for cheap labor."

Brack says that despite the caseload, lawyers in his district are working hard to ensure immigrants get a fair day in court.

"We deal with big numbers out of necessity. The prosecutors here should be credited for their humanity and graciousness. None of the defenders allow this to be an assembly line. None of us let these thousands of trials to just be another case."