Behind the gavel of America's busiest judge
Robert Brack's crowded docket in a New Mexico federal courtroom shows the effects of a tougher US immigration policy.
Las Cruces, N.M. — Less than an hour into one of his regular morning dockets, federal district Judge Robert Brack has already sentenced 14 felons, or roughly one-sixth the number of people the average federal judge sentences in an entire year. The 15th defendant of the morning, Jamie Peña-Flores, stands before the judge shackled at the ankles, wrists, and waist.
“This is a tragic case,” says the man’s lawyer. Mr. Peña-Flores, a Mexican national, has spent most of his life in the United States working as a certified diesel mechanic and welder. He was most recently living in Wyoming, where he was making $28 per hour. His three children are American citizens and his wife has been diagnosed with cancer. Until this moment in court, the defendant had a clean criminal record, except for one incident of driving under the influence, for which he’d already served jail time.
Peña-Flores, however, entered the country illegally. For at least the second time in his life, authorities caught him trying to cross from Mexico, where he had recently returned for a visit, into the US, an infraction that can be prosecuted as a felony and is part of a burgeoning American strategy to reduce illegal immigration.
“We never get through a docket without encountering a situation like this, a husband and a father separated from his wife and children,” says Judge Brack. “Your situation is all the more tragic because of your wife’s illness. Tell me about that.”
He listens to how the wife is unable to work because of her illness, and how she hasn’t been able to receive treatment because of a lack of health insurance. Peña-Flores has little hope of returning to America and has already begun immigration proceedings with Canada. If accepted, he will be closer to his family, which is still in Wyoming, than he would be in Mexico.
“I’m going to pray that you and your family are united sometime soon,” says Brack. “In situations like this, I’m not very happy to be the face of a system that creates such results.”
With that, the judge sentences Peña-Flores to time already served. Now a convicted felon, he shuffles out of the court in chains and will soon begin the process of being deported back to Mexico.
If you go by numbers alone, cases like this have made Robert Brack the toughest federal judge in America. In recent years, he has sentenced more people than any of his peers – 6,905 between fiscal years 2009 and 2013. He could have taken off more than a year and he’d still outrank the judge who handed out the second highest number of sentences during that period.
In person, however, Brack is perhaps the opposite of what those statistics imply. Within Las Cruces, he has a reputation for patience, compassion, and a quick wit. A self-deprecating family man, he leads a Bible study group at church, attends local college football games, and is convivial with the staff at the Mexican restaurant across from the courthouse, who know his favorite orders.
Brack’s sentencing record isn’t the result of a draconian judicial philosophy, nor is it the result of overseeing a region rife with serious crime. It comes from working in a district populated by countless immigration cases like that of the diesel mechanic. More than anything, the turnstile justice in his courtroom is the outgrowth of a rapidly expanding and controversial trend in American immigration policy: the criminalization of illegal border crossings.
Rather than simply deporting undocumented people caught trying to enter the US, officials have begun using the federal court system to prosecute record numbers of them. When authorities apprehended migrants in the past, they usually just created a file on them and ushered them back over the border. Today, if they are caught crossing two or more times, many are charged with a felony, sent to court, and given jail time.
To supporters of the policy, that is exactly how it should be. They see the prosecutions as a way to reduce repeat entries, discourage others from coming at all, and help the US retake control of its porous southern border. But critics see increasingly crowded courtrooms, fractured families, and uneven justice being handed out in courts along the 1,900-mile border.
Few doubt the new policy is taxing the US justice system. During the previous fiscal year, immigration offenses made up 53 percent of all federal prosecutions nationwide and 80 percent or more in four of the five court districts along the border.
Districts in Texas and Arizona handle more cases than the New Mexico District, but they have more judges. Last August, a second federal judge was added to the court in Las Cruces, but Brack still estimates that he’ll sentence about 1,400 people this year.
Even though the immigrants are represented by public defenders, there is no real defense for illegal entry, except in rare cases, such as when a migrant has a legitimate citizenship claim. That means a decision to prosecute is tantamount to a conviction. The vast majority of defendants plead guilty, and all that’s left for the judges is to decide on the sentence.
In the absence of immigration reform in Washington, many of those on the front lines of border-enforcement policies, like Brack, are struggling under the cavalcade of cases.
“Every day that goes by that the system isn’t fixed there are victims of the broken system,” says Brack. “Those numbers have grown so dramatically that I just don’t think people with the loud, angry voices have a sense of the innocent people who are being crushed every day by this machine that’s like a steamroller without anybody at the wheel.”
• • •
Brack is a lean man with a thin goatee and graying hair parted neatly to one side. He wears wire-rimmed glasses. He plays a steady game of golf and seems to have a rich personal life despite the demands of the courthouse.
That Brack now finds himself a federal judge at the nexus of US immigration policies surprises even him when he speaks about the trajectory of his life. The son of a Santa Fe Railroad man, Brack spent his youth moving around the country, starting in California, then Chicago, and finally settling in New Mexico for middle school and high school.
During his junior year of college at Eastern New Mexico University in Portales, he got engaged and found himself wondering how he would support a wife and family. After scoring high on the law school entrance exam, he decided to pursue a course of study on a bit of whim. “I went to law school thinking no one would question it as a responsible thing to do,” he says.
Though his motives to get a legal education may have been uninspired, Brack fell in love with trial law by the time he graduated from the University of New Mexico in Albuquerque. Within three months of starting at a civil law firm, his boss retired and Brack inherited the entire practice. He ran the firm for the next 19 years and had little interest in doing anything else.
Then, unexpectedly, a state district judge looking to retire approached him about the possibility of taking over his seat. Brack balked at first, then decided he was interested. Gov. Gary Johnson appointed him to the state bench not long thereafter.
Six years later, Brack rose once again when President George W. Bush appointed him to his current position in 2003. Even as someone who had lived the majority of his life near the border, Brack had never given much thought to immigration, until his appointment to the federal bench. “I read about it in the newspaper just like everyone else,” he says. “I wasn’t having to deal with it on a daily basis, so it wasn’t a part of me.”
Brack took up his federal robes at a moment of heightened immigration enforcement. Starting in the mid-1990s, the US sought to curb the flow of illegal immigration with programs focused on urban areas. When the migrants shifted to more desolate regions, the Border Patrol adjusted its tactics. These efforts, coupled with an elevated sense of security after 9/11, resulted in unprecedented resources being devoted to security along America’s borders.
Today, the government spends 15 times more on immigration enforcement than it did on the entire Immigration and Naturalization Service in 1986. It now gives more money to immigration enforcement agencies than to all other major federal law enforcement agencies combined. In late July, authorities announced plans to give US Customs and Border Protection an additional 2,000 agents.
“I did my homework,” says Brack. “I didn’t come down here blind. But I had no sense of what the numbers were going to be like. I never set out to be the judge in America who sentenced the most people in a year. I didn’t see that coming. I didn’t know that those kinds of numbers were involved here.”
During his early years on the bench, Brack says authorities tended to send to his court only immigrants who had a criminal history or who were “frequent fliers” – those who had been caught trying to enter the US numerous times. In fiscal year 2004, the border patrol in the El Paso Sector, which includes New Mexico, apprehended 104,399 people trying to cross the border illegally. Of those, Brack says only a small percentage were referred to the courts. By 2013, agents had caught just 11,154 people in the El Paso Sector. But the number of cases coming before Brack increased because border patrol agents had begun referring the vast majority of its apprehensions to the courts.
The push to prosecute more migrants who crossed the border illegally started in Del Rio, Texas, in 2005 when the border patrol and the Department of Justice began a program known as Operation Streamline. Previously, when agents apprehended border crossers, they often just sent them back without any consequences. The new plan sought to use legal prosecution and jail time as a deterrent. It quickly spread throughout the region. Now it’s in use in various forms in every border sector except Marfa, Texas; and California.
“There’s no real program that has changed the immigration landscape as much as Operation Streamline,” says Jeremy Slack, a visiting assistant professor at the University of Texas at El Paso.
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Brack’s lair is the Guadalupe courtroom in the federal court building in downtown Las Cruces, a quiet desert town set amid the rumpled Organ Mountains. The courtroom is nondescript. It has a back wall of dark stained wood. The judge’s bench is slightly elevated, overlooking the high-ceilinged room and flanked by the American and New Mexico state flags.
On this morning, Brack begins by addressing both the first defendant and the rest of those awaiting sentencing, who are sitting in shackles in the back of the room. All but one of the 16 people are there for an immigration infraction. Brack says most of the people he encounters each day have no idea they risk a felony conviction crossing the border illegally.
The first defendant, Bertha Enriquez-Santos, spent 20 years in the US. During that time she had one driving violation and an immigration offense. Otherwise her record was clean. The good news, Brack tells her, is that he will impose a sentence of only time already served. The bad news is that if she tries to come back again and gets apprehended, she’ll likely spend a year in prison.
“Coming back would be a terrible idea. Here’s why: You’ll be caught,” he says to Ms. Enriquez-Santos, telling everyone else in the court to take note. “I don’t think anyone is getting across the border currently, but what’s worse than that, everyone that’s caught is being charged with a crime.”
Brack sentences most of those facing prosecution for the first time, like Enriquez-Santos, with time already served, which in his court is usually less than 35 days. In other regions of the border, sentencing practices vary. A time-served sentence in McAllen, Texas, for example, can reach up to 150 days, but judges there usually don’t hand out punishments that lenient.
Detaining immigrants costs $164 per person per day. A report co-written by Mr. Slack found that the US was expected to pay $1.96 billion in detention costs in 2013 alone. Among those entering federal prisons, only drug offenders outnumber immigration offenders.
“By and large the vast majority of people I represent ... are people with no criminal records who don’t want to commit crimes and who would probably be model citizens in this country if they were allowed to live here,” says Robert Kinney, a public defender in Las Cruces.
Both Mr. Kinney and Brack say that they do deal with immigrants who have committed serious crimes. But the vast majority of their cases involve economic migrants – people coming to the US to find jobs.
Elsewhere along the border, that isn’t always the case. In the southern tip of Texas, federal district Judge Micaela Alvarez oversees an area that has become a central crossing point for migrants. Other than Brack, Judge Alvarez has sentenced more people in federal court than anyone else since 2009 (which she was unaware of until told by the Monitor). She laughs at the thought that such a distinction connotes the stereotype of a hard-nosed Texas judge, saying she does not see herself that way. “I really do strive to individualize every single case,” she says.
Alvarez notes that, unlike Brack, most of the people she sees in illegal reentry cases have significant criminal histories. In fact, she says prosecutors in her district usually don’t pursue
cases if the immigrants don’t have illicit pasts.
“The individuals that we are dealing with are, generally speaking, those who have crimes or aggravated felonies on their records,” she says. “I do believe that there is a need for deterrence through the criminal-justice system for some of these individuals. Here, we are not seeing individuals who ... are just coming to work.”
Alvarez, as a result, rarely passes out time-served sentences, generally sending people to prison for a year or more before their deportation.
Critics often cite the lack of consistency in courts along the border as one reason they oppose prosecuting undocumented immigrants. Those caught illegally crossing the border in Texas may face a significantly different outcome than migrants in New Mexico or Arizona. The likelihood of whether a person will be selected for prosecution varies, too, as does how the trial is handled. In Arizona, for example, immigration defendants are often tried simultaneously in groups. The length of the average sentence also differs from district to district.
“Our immigration process hasn’t been updated in decades, and instead what we’re doing is relying too much on an enforcement-
only model,” says Vicki Gaubeca, director of the American Civil Liberties Union’s Regional Center for Border Rights in Las Cruces.
Yet supporters of Operation Streamline believe the tougher penalties are essential to sending a signal that the border cannot be treated like an international crosswalk. “You need to bring the hammer down on every single person sneaking across the border to reestablish respect for the law,” says Mark Krikorian, executive director of the Center for Immigration Studies in Washington.
Whether the tougher enforcement is discouraging immigrants from coming to the US is the subject of considerable debate. Some believe it is, citing a drop in apprehensions. Others say any reduced flow is largely the result of improved economic conditions in Mexico.
Ronald Vitiello, deputy chief of the border patrol, believes both factors are having an impact. While he acknowledges that the program creates a burden not only for the federal courts, but for all other agencies involved as well, he believes it is discouraging repeat border crossers. “We think that is just one of the pieces of a larger system that really has helped us improve refining the use of our resources,” he says.
At the Luna County Detention Center, a prison surrounded by creosote bush west of Las Cruces, the policy’s effect has been felt by one Guatemalan immigrant. For six years, the man (who requested anonymity) worked at a lumber mill in Atlanta, making about $10 an hour. When he returned to Guatemala in 2010 to be with his family, he could only find work as a farmhand for $5 a day.
So he decided to return to the US, borrowing $1,000 to make the journey. He was caught by the border patrol after wandering three days in the desert. They deported him. He waited a few months, borrowed another $1,000, and tried again. This time when he was apprehended he was charged with a felony. Now, having pleaded guilty, he awaits sentencing by Brack.
“I would like to get back there as quickly as possible to see my family because I haven’t heard anything from them,” he says. “Then I will try to find a little work in Guatemala.”
The man vows to stay in Guatemala. But from his research, Slack believes he and other immigrants, while perhaps dissuaded from coming to the US because of tougher enforcement in the short run, will make their long-term decisions based on their finances and the food on their tables.
• • •
Outside court, Brack finds it hard to dodge immigration issues. Friends and community members often seek out his thoughts on the subject. This summer, as Central American immigrants flooded into the US, his church became part of an effort to temporarily host those who could not fit in overcrowded immigration facilities. Even in his golf group, the issue often dominates conversation. “I never saw that coming,” he says.
As a federal judge, Brack cannot engage in public activism or vocalize opinions that might taint his objectivity as a jurist. Despite these ethical boundaries, many who know him socially say that simply hearing about his time in court has caused them to see immigration issues in a new light. On Wednesday evenings, Brack leads a small Bible study group at his church. Among other stories from his personal life, he often shares experiences from his time on the bench.
“It certainly gave me a very different perspective listening to Bob Brack, just listening to the compassion he has on the days when he comes in to teach a class,” says Sharon Carr, a regular in the Bible study group.
Brack takes great joy in showing visitors around the courthouse. During his tenure as judge, he oversaw the construction of a new federal court building, which was completed in 2010.
“Lawyers and judges, we don’t build stuff. We don’t get to see the work of our hands,” he says. “So when I drive by and see this courthouse, it’s really gratifying.”
The structure went up next door to the old courthouse, allowing the judge to watch it being built through his window. He jokes that it must have been annoying to the contractors, who regularly got calls from him with suggestions.
His involvement did make him something of an expert on the building, though. Walking by some ornamental stonework along the first floor, Brack points out that the moss rock came from a quarry in northern New Mexico. Acting more like a docent than a judge, he notes that the masons went through 32 saws in cutting the various stones for the structure.
The judge picked out much of the art for the inside of the courthouse. He commissioned artisans to create a custom conference table representative of New Mexico, which was crafted out of green granite with a jagged streak of brown running down the middle symbolizing the Rio Grande.
The table holds meaning for Brack beyond its design. Several years ago he was sitting on the bench, asking yet another immigration defendant about his life. The man mentioned that he had met the judge before: He’d been one of the masons who helped fashion the conference table. Brack acknowledged the coincidence, and then sentenced the man for the felony of reentering the country illegally. He was deported after leaving the courtroom.
“There wasn’t anything I could do – or did – to prepare myself for the heartbreak associated with what we do every day,” he says. “I want people to know what immigration looks like on the ground in Las Cruces, N.M., and put on the line the notion that these are hardened criminals seeking amnesty and using amnesty like it’s a dirty word. It’s just not true.”
Tom A. Peter reported from Las Cruces with support from the Robert Novak Journalism fellowship.