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February 10, 2010

Federal judge in Texas seeks justification for criminal prosecution of immigration offenders without a criminal history

As detailed in this local article from Texas, which is headlined "Federal judge questions immigration prosecutions: Sparks suggests it's too expensive to jail those without any significant criminal history," a federal judge near the border is sick and tired of minor immigration offenses being criminal prosecuted in federal court, and he is not going to take it any more.  Here are the details:

In an order filed Friday, a federal judge in Austin questioned U.S. prosecutors for seeking criminal convictions in court against some illegal immigrants, writing that the practice "presents a cost to the American taxpayer ... that is neither meritorious nor reasonable."  The order by U.S. District Judge Sam Sparks [which is available here] comes as his docket, like others in Texas, is swollen with defendants charged with immigration crimes.

Most of those prosecuted in Austin have been identified by immigration officers at the Travis County Jail and charged with illegal entry after deportation. Many of those defendants have no significant criminal history and until a change in enforcement strategy about two years ago would have been deported and not prosecuted....

On Friday, Sparks wrote in the order that "like many of the defendants prosecuted under the (federal illegal re-entry law) in the last six months" the men "have no significant criminal history."  Sparks wrote that it has cost more than $13,350 to jail the three men and noted that charging them criminally means additional costs and work for prosecutors, defense lawyers, court personnel and others. "The expenses of prosecuting illegal entry and re-entry cases (rather than deportation) on aliens without any significant criminal history is simply mind-boggling," Sparks wrote.

He said the assistant U.S. attorney who prosecuted the case could not state "a reason that these three defendants were prosecuted rather than simply removing them from the United States." He ordered prosecutors to be prepared to state the reasons for prosecuting such cases....

In part because of Operation Streamline, a Bush administration project aimed a bringing criminal charges against most immigration violators in certain border areas, the federal prosecution of immigration violators jumped nearly 9 percent during the 2009 fiscal year, according to researchers at Syracuse University who analyze Justice Department data.

For years federal prosecutors in Austin had a practice of prosecuting for illegal re-entry only immigrants who had previously committed an aggravated felony, such as rape, burglary or drug trafficking, or who had been deported and re-entered the country numerous times. Since March 2008, there has been a steady flow of cases in Austin charging some immigrants who have minor or no criminal histories with illegal re-entry.

Steve Mason of Austin, a member of several immigration reform groups, including the Immigration Reform Coalition of Texas, said that federal prosecutors need to do more — not less — to target immigration law violators. "If you come into this country illegally, you should be prosecuted for it," he said.

February 10, 2010 at 04:15 PM | Permalink


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May I humbly suggest to the Court a meritorious reason for prosecution rather than simple deportation--deterrence-individual and general.

Posted by: mjs | Feb 10, 2010 8:13:07 PM


Would you be willing to back that suggestion up with empirical research that prosecution achieves either individual or general deterrence in 1326(a) and 1325 cases?

Posted by: Texas Lawyer | Feb 11, 2010 12:20:31 PM

And, if you can do that, also explain why "deterrence" from committing a trespassing offense justifies all this expense in each case when vital services in so many other areas are being cut back.


Posted by: Texas Lawyer | Feb 11, 2010 12:21:40 PM

I see that separation of powers is alive and well in Texas.

Posted by: DM | Feb 11, 2010 5:36:21 PM

Nearly every felony re-entry prosecution has at least one instance of a prior administrative deportation.

What does that tell you about the deterrent impact of administrative deportation?

Posted by: mjs | Feb 11, 2010 7:31:41 PM

i think we should do what the mexican govt does to those who cross it's southern border illegally.

Lockem up for a year or two awaiting trial...during that time they are assaulted and raped and abused by the other prisoners. At the end of that tiem they are released and they run back across the border as fast as they can!

Posted by: rodsmith3510 | Feb 11, 2010 8:49:13 PM

If I were running appeals in that USAO, I would appeal this order and fully expect to win. Prosecution priorities and the expenditure of taxpayer dollars are political questions, not judicial ones. The judge is paid to adjudicate the cases legally brought before him, not question why the prosecutor brought them. There is not even a suggestion here that the prosecutor lacked probable cause or that the defendants are innocent (which is a jury question in any event).

It's too bad the judge is going to miss his afternoon golf game to sit there and listen to these boring cases. Maybe he should retire and let someone else have a chance. That way he can golf ALL the time.

Posted by: Bill Otis | Feb 12, 2010 2:28:06 AM

horce pucky there bill he's the judge that's why he's there to JUDGE and he's not limited to just judinging the defendant.

Just like legally a jury is required to judge both the defendant and the law. If the law is just and the defendant comitted the crime he/she is guilty

if on the other hand the law is unjust and the defendant comitted the crime of refusing to obey and UNJUST law he/she is NOT GUILTY.

pitty way too many american citizens don't know their RIGHTS and RESPONSIBILITIES AS A JUROR!

here you have a judge who is looking at an idiot of a DA who is wasting 1,000's of hours and god knows how many million dollars of limited DOJ funds to prosecute joke crimes. Good for him for calling them on it.

Posted by: rodsmith3510 | Feb 12, 2010 1:53:35 PM

rodsmith --

I'll tell you right now that there is not a single federal appellate judge in the country who would vote to uphold this order. Even Stevie Reinhardt and Gilbert Merritt would have to vote to reverse.

Posted by: Bill Otis | Feb 13, 2010 1:04:39 AM

lol all that means is they are as big a set of dummies as the DA in this case.

this is kind of like hitting a carjacker with a nuke! those suckers are expensive. Why use one when a baseball bat would work.

Posted by: rodsmith3510 | Feb 13, 2010 3:43:36 AM

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