A few years back, most of the defendants in Judge Robert Brack's courtroom in Las Cruces, N.M., wouldn't have had contact with American criminal justice – let alone be sitting in green jail clothes and shackled at the wrists and ankles.
But under a new zero-tolerance program that has been implemented along sections of the border, migrants crossing illegally into the United States are prosecuted – not voluntarily returned to Mexico as they often were in the past. If they return again, they face a felony charge.
"If I see you again, under similar circumstances, I will give you a year," Judge Brack admonishes the defendants on a recent day.
Is the policy deterring migrants from slipping across the border? The US border patrol says that attempts at crossing are down.
Doug Mosier, a spokesperson at border patrol in the El Paso sector, which includes Brack's jurisdiction, says apprehensions in his sector are down significantly since the program began, by about 50 percent.
Cutting judicial corners?
But critics say that too many judicial corners have been cut, while more serious cases involving drugs and people smuggling have gone unheard.
"The program is diverting resources away from prosecuting more serious crimes along the border," says Joanna Lydgate, a civil rights fellow with the Warren Institute at Berkeley School of Law, which released a critical report of Operation Streamline – the umbrella name given to various programs begun along the border – in January.
Operation Streamline began in 2005, in Del Rio, Texas, and has since spread along the border. In the El Paso sector, it was put into effect in the beginning of 2008. Mr. Mosier, who has been with border patrol for 22 years, says the fear of prosecution is a preventive tool "with teeth," he says. "It discourages people from freely coming across the border like in the old days," he says, when the border was a "revolving door."
Critics say such policies only push migrants to attempt more treacherous border crossings and that the US recession is the main reason for the drop in migration numbers.
On the Mexican side of the border, in Ciudad Juárez, the impact of the policy is evident at Casa del Migrante, which used to help migrants on their way to the US.
Last year, 7,000 deported migrants stopped by, they say. That's double the number from the previous year, while migrants en route are a mere trickle.
The stigma of jail time
Rocio Melendez, a human rights lawyer at Casa del Migrante, says that prosecuted migrants come home with the stigma of having spent time in jail. "They are criminalizing migrants," she says.
Also, the majority of defendants plead guilty – which gets them out of jail quickly but does not necessarily allow lawyers a chance to thoroughly see how defensible each case might be, says Assistant Federal Defender William Fry in Del Rio.
"I don't think people who created the program were mean-spirited, but, unfortunately, from a lawyer's perspective, you can't do one-size-fits-all justice," says Mr. Fry.
'Making felons out of people'
Ms. Lydgate's study shows that between 2002 and 2008, criminal prosecutions of petty immigration-related offenses increased from 12,411 cases to 53,697. During the same time period, however, drug prosecutions declined amid spiraling border violence in Mexico.
Brack sentenced 1,750 defendants in 2009, up 20 percent from 2008, and he says his courtroom is overwhelmed with cases.
"The days of coming back and forth without consequence are over," Brack says to his first defendant of the day, in an attempt to educate about the new deal. But even Brack has issues with the policy.
"I understand the need to have our borders secure," says Brack, but he says the new system doesn't do enough to target the demand side of the equation. Of the more than 7,000 people he has sentenced on immigration charges, for example, he says not one has been an employer. Yet migrants come here primarily for jobs. "We are making felons every day out of people."