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Immigrants and activists flood San Diego to protest ‘Operation Streamline’

Defense attorneys say they’ll have only minutes to meet with their clients before the immigrants are convicted en masse.

Credit: Max Rivlin-Nadler

Immigrants and activists flood San Diego to protest ‘Operation Streamline’

Defense attorneys say they’ll have only minutes to meet with their clients before the immigrants are convicted en masse.

Starting Monday, immigrants arrested at the California border will be driven to a converted garage in the basement of the Edward J. Schwartz Federal Office Building in downtown San Diego, according to a plan devised by prosecutors and shared with defense attorneys. The immigrants will meet quickly with their attorneys before being taken across the plaza to the federal courthouse. Up to a dozen of them will appear together in the courtroom, most likely in chains, wearing headsets from which they will hear a translation of the proceedings. They will be charged individually with illegal entry, most likely plead guilty, and be sentenced, all within just a few minutes.

This fast-track prosecution process is being unrolled as part of the expansion to the Southern District of California of “Operation Streamline,” a George W. Bush-era program created to speed up prosecutions that is expanding as courts buckle under the growing caseload of the Trump administration’s “zero tolerance” policy.

According to the prosecutors’ plan, the immigrants’ brief meeting with their lawyers will take place in “a room where other lawyers will be meeting with their clients at the same time and where there will be marshals and agents sitting in the back of the room who could potentially hear our conversation,” explained Jami Ferrara, head of the Criminal Justice Act Panel, which assigns lawyers to provide defense for poor people charged with federal crimes, and who was part of a commission assembled by the district’s chief judge to deal with the increase in prosecutions. “It is not a good system,” she said.

Operation Streamline has already been implemented in federal courthouses in Arizona, New Mexico, and Texas, where reporters have witnessed groups of immigrants pleading guilty and getting sentenced in less than a minute per defendant. Ferrara believes that by not allowing immigrants the chance to mount an adequate defense, and with prosectuors generally offering them time served if they plead guilty, the court is compelling thousands of immigrants to plead guilty to federal crimes. That could be a mistake, defense attorneys argue, since some would be better off fighting their charges. Eight out of the nine misdemeanor illegal entry cases represented by Federal Defenders of San Diego that have gone to trial since May have ended in dismissal or a “not guilty” verdict, according to the organization. And there are consequences for pleading guilty: Immigrants who do so could face felony charges if they are re-arrested for the same offense, which carries a potential sentence of years in federal prison.

Federal defenders and magistrate judges have long resisted efforts to expand Operation Streamline to the Southern District of California. But with the surge in prosecutions, the courts system, as well as the federal jail system, have been unable to keep up. Operation Streamline allows U.S. Marshals to avoid jailing defendants, instead taking them directly to federal court from the Border Patrol or ICE stations where they are held in the hours after an arrest. Assuming they plead guilty, they are then handed over to ICE custody, where they face civil immigration proceedings, including determinations regarding asylum claims and possible removal.

Right now, pleading guilty to illegal re-entry does not affect a defendant’s future immigration status. However, according to new draft regulations proposed by the Department of Justice and obtained by Vox, anyone convicted of entering the U.S. illegally would become ineligible for asylum—meaning that mass prosecutions for border crossing without authorization could potentially make countless asylum-seekers unable to ever gain legal status.

Protesters outside the Edward J. Schwartz Federal Office Building on July 2, 2018
Credit: Max Rivlin-Nadler

Federal public defenders in San Diego have been fighting against the expansion of Operation Streamline since prosecutors began pushing for it in May. In a series of letters written to the chief judge of the district, both Ferrara and Ruben Cahn, the head of the Federal Defenders of San Diego, have brought up serious due process concerns regarding the fast-track prosecutions.

On June 22, Cahn wrote an email to Chief Judge Barry Moskowitz, pointing out how Operation Streamline is part of America’s long legacy of “separate and unequal” tribunals.

“It is worth reflecting on just what the proposed court would look like,” Cahn wrote. “Though charged only with misdemeanors, all defendants in this courtroom will be in custody. … These defendants will not be treated as individuals. Their cases will be heard en masse. For most, there will be no ‘initial appearance’ and no consideration of bond. These defendants will face a choice between pleading guilty in hopes of immediate release or waiting two, three, or four weeks for a trial to challenge the government’s case against them. The faces of defendants will all be brown. All will be aliens, a class of people historically subject to discrimination.”

Cahn compares this to how the court regularly adjudicates federal misdemeanors in the Southern District: “Defendants [in those cases] will walk into the courtroom through the same door as the public, as free men and women. They will not be chained. They will be treated as individuals, their cases heard separately. No coercive influence will urge them to resolve their cases and plead guilty to obtain their freedom. The faces of defendants in this special courtroom will be of every color. They will not be marked as aliens.”

Moskowitz did not respond to a request for comment from The Appeal. In the order that he filed in May to form the committee that led to the expansion of Operation Streamline, he wrote that the increase in prosecutions “has and will cause strains, issues and problems for the court and its personnel.”

In response to The Appeal’s request for more details about the rollout of Operation Streamline, the Department of Justice wrote: “Beginning on July 9, the district court will be placing an additional magistrate judge on rotation to handle misdemeanor immigration cases. We look forward to our continued work with this committee to effectively implement this program in a manner that protects the constitutional rights of these defendants.”

Ferrara contests the notion that the plan for Operation Streamline was the result of input from all members of the committee. “We are not creating this court. We are responding to their demands. The court is responding to their demands,” Ferrara told The Appeal. “This is not collaborative. It’s reactive.”

A banner hung by activists across from the federal courthouse and jail
Credit: Max Rivlin-Nadler

This week, hundreds of people marched through downtown San Diego to the federal courthouse in opposition to Operation Streamline and the practice of separating families at the border, as part of a series of civil disobedience actions organized by the Latinx-led organization Mijente.

“We already live in a highly militarized area, we don’t need more border patrol or more prosecutions” said San Diego resident Itzel Guillen, 24, a DACA recipient who works with the community organization Alliance San Diego. Guillen spoke at a rally in San Diego’s Chicano Park shortly before the march to the federal courthouse began. “Our border communities are among the safest in the nation. It doesn’t make sense to invest in that instead of infrastructure and education.”

As part of the civil disobedience actions, protesters disrupted arraignments of immigrants in federal court before they were removed by U.S. Marshals. As the estimated 600-person march reached the federal courthouse in downtown San Diego, activists rappelling down the side of a nearby hotel unfurled a banner that read “Free Our Families Now! #stopstreamline.” Clergy members formed a human barricade in front of the federal office building, where protesters demanded the end of Operation Streamline as well as the abolition of ICE.

Elizabeth Estrada, a member of Mijente, came to San Diego from the Bronx for the march. “I’m an immigrant from Mexico and I didn’t want to just stay home. I wanted to come out in direct opposition to deportation and streamline policies to deport people without any type of representation or a trial,” Estrada told The Appeal. “We do not need to expand Operation Streamline. We need to end it.”

After A Murder Conviction is Reversed, Police Chief Vows to Watch Defendant 'Til the Day I Die'

Did a Louisiana police chief and a prosecutor cross a line when they issued televised threats to a man who'd just been granted relief by a federal appeals court in a child killing?

Ricky Langley, Louisiana man whose second-degree-murder conviction was just declared invalid by a federal appellate court
Texas Moratorium Network/Flickr

After A Murder Conviction is Reversed, Police Chief Vows to Watch Defendant 'Til the Day I Die'

Did a Louisiana police chief and a prosecutor cross a line when they issued televised threats to a man who'd just been granted relief by a federal appeals court in a child killing?

A Louisiana police chief stared into the television camera and issued a warning to a man whose conviction in a decades-old child killing had just been reversed by a federal court: “Ricky, listen to me you little piece of shit,” he said, “’til the day I die, I’ll be watching you.”

In a recent interview with KPLC, the Lake Charles NBC affiliate, Lake Charles Police Chief Don Dixon made the threats against Ricky Langley, a Calcasieu Parish man who confessed during an interrogation to the 1992 murder of a 6-year-old named Jeremy Guillory.

Calcasieu Parish prosecutors tried Langley three times for the boy’s murder. At his first trial, Langley was convicted and sentenced to death, but those proceedings were nullified after it was found that the judge presiding over the grand jury selected the foreperson based on race. In the second trial, Langley was acquitted of first-degree murder—defined by Louisiana law as killing a human being with specific intent to kill or to inflict great bodily harm while committing an aggravated felony, or when the individual kills a person under the age of twelve or older than 65, which is considered an aggravating circumstance—after his attorneys argued that he could not form “specific intent” because he was mentally incapable of doing so. The jury returned a guilty verdict on second-degree murder, a lesser offense. But when Langley’s defense team appealed, he was granted a new trial. At the third trial, prosecutors retried Langley on the second-degree murder charge, which his attorneys said violated the double jeopardy clause—but he was nonetheless convicted.

The day before Dixon’s fiery interview, the U.S. Court of Appeals for the Fifth Circuit ruled that Langley’s second-degree-murder conviction from the third trial was invalid because a jury in the second trial rejected the state’s claim that Guillory acted with specific intent, therefore precluding prosecutors from getting a second bite at the apple on that issue in a third trial. The decision sets up a possible fourth trial for Langley on manslaughter charges, and now defense attorneys and legal ethics experts say that Dixon’s KPLC comments raise ethical concerns that he has prejudiced pretrial proceedings.

Such concerns are backed by ethical guidelines for prosecutors. According to American Bar Association guidelines, prosecutors should not make or authorize extrajudicial statements that would have a substantial likelihood of prejudicing a criminal proceeding; they are also ethically bound to prevent law enforcement personnel from doing so. The Louisiana Rules of Professional Conduct has similar language about the role prosecutors have in reining in such statements by law enforcement. Rule 3.8(f) states that prosecutors should “exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement.”

Dane S. Ciolino, a law professor at Loyola University in New Orleans who edits the blog Louisiana Legal Ethics, said Dixon has possibly crossed an ethical line with his rant about Langley, referring to the standards set by Louisiana’s rules of professional conduct stating that prosecutors shouldn’t make any comments before trial that are likely to increase public condemnation of the accused.

“That’s the real problem with that kind of comment,” Ciolino told The Appeal. “There used to be press conferences with dope and guns after arrests were made, and you don’t see those so much anymore because people understand that it’s inappropriate to do anything that increases the public condemnation of the accused prior to trial. … Most prosecutors and law enforcement officers understand their obligations.”

Ciolino adds that “prosecutors have to rein the [police chief] in,”and he places responsibility for Dixon’s comments squarely at the feet of Calcasieu Parish prosecutors.

Indeed, Calcasieu Parish District Attorney John DeRosier sat beside Dixon during the KPLC interview and made similar condemnations of Langley. “We are going to use every resource this office has, as long as it takes, as much as it costs, to keep this horrible killer, this murderer, in prison for the rest of his life,” DeRosier said. “Because this individual will kill again. He has said he will kill again. And we have people to whom he has said that.”

In response to an interview request from The Appeal, DeRosier’s office issued the following statement on possible ethical violations committed by DeRosier and Dixon during the KPLC interview: “The proper venue to raise and resolve an allegation of prejudicial pretrial publicity is within the confines of the courts—not in the media. That is how we will address any such allegations if and when they arise.”

The Lake Charles Police Department did not respond to requests for comment.

Potential disciplinary sanctions for prosecutors for engaging in prejudicial conduct include disbarment, suspension, or admonition by the state’s bar association, though it’s worth noting that they are rarely disciplined for misconduct

Ciolino says that regardless of whether disciplinary action is taken against Dixon or DeRosier, he expects the defense to seek a gag order on Dixon and possibly a motion for a change in venue. Dixon and DeRosier’s statements, he says, “just cause needless trouble in the conduct of the proceeding.”

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Why Sex Offender Registries Keep Growing Even as Sexual Violence Rates Fall

Lists that include out-of-state visitors are inflating the numbers and keeping fear at a boil.

A map published by the National Center for Missing & Exploited Children (NCMEC)

Why Sex Offender Registries Keep Growing Even as Sexual Violence Rates Fall

Lists that include out-of-state visitors are inflating the numbers and keeping fear at a boil.

Quentin (not his real name) was convicted eight years ago of child pornography possession in Florida. He served his time and has since moved to another state. But his sentence required his photo and other personal details to appear on Florida’s sex offender registry, and there they will stay for the rest of his life, even if he never sets foot in the state again.

The state’s registry is padded with thousands of Quentins, people who don’t live in Florida. Under a change to state law passed this spring, there will soon be more: Starting July 1, out-of-state registrants who visit for at least three days (down from five) must go to a sheriff’s office to have their personal details added to Florida’s list. If they don’t, they face a third-degree felony.

Rules like that aren’t unique—22 other states keep out-of-state visitors on their registries for life, according to a study released last November. It’s one reason state lists misrepresent the actual number of people with sex-crime records living in communities. As already-bloated lists keep ballooning, they feed the impression of a growing population of dangerous people who require ever-more-extreme laws to monitor and control.

On May 30, the National Center for Missing & Exploited Children (NCMEC) released its latest nationwide count of names on state sex offender registries. For the first time ever, the total was more than 900,000. NCMEC spokesperson Staca Shehan told The Appeal the organization doesn’t share data on growth trends because changes in state laws and other anomalies can make it difficult to accurately compare the data across years. But calculations by William Dobbs of Dobbs Wire, who tracks sex-offender registry developments nationwide, show a 3 percent jump in the nationwide number in the last six months. That’s slightly faster than in the past; increases have fluctuated between about 3 and 5 percent annually since 2007. Even if the growth rate returns to that historical average, by 2021 more than a million names will be on registries.

Many of those entries are duplicates like Quentin or represent people who are not actually part of a state’s population for some other reason. In a 2014 study in the journal Crime & Delinquency, a research team found that in the 42 states and two territories studied, 19 percent of those on registries were still behind bars, 9 percent lived out of state, and 3 percent had been deported. Of Florida’s 55,000 registrants at the time, more than 31,000 were in one of those three categories. “It’s a concern of ours,” Shehan said of problems with the count. She says NCMEC has no way of knowing how often an offender shows up on multiple state lists. So that means then there’s duplicated offenders in our grand total,” she said. “And we have no way of knowing how often that happens.”

Even if the growth rate returns to that historical average, by 2021 more than a million names will be on registries.

Dobbs, an adviser to the Sex Offense Litigation and Policy Resource Center affiliated with the Mitchell Hamline School of Law in St. Paul, says the inaccuracies are symptoms of a malignant logic at the heart of registries: that people who have served their time should be put on public lists because of the ineffable risk of what they might do in the future. Problems with registries can’t be fixed, he says, because the concept itself is a “broken” one. “It turns people into suspects foreveror at least as long as they’re on it,” he said. “The politicians have created this giant naming-and-shaming train and are fueling it with fear.”

One of Quentin’s cousins is getting married in October and invited him to be in the wedding in Florida, says Quentin’s mother. But to participate in the various events, he would need to stay more than three days—meaning a trip to the local sheriff’s office to get a new photo taken and have the address where he’s staying and the license plates of any cars he will drive added to Florida’s public registry. So Quentin is skipping the wedding.  

Even if registry counts are inflated, it’s likely that the real number of registrants is rising as state lists scoop up an ever-broader swath of the population. One reason: New state laws governing who must register are typically applied retroactively to cover those who offended before the laws passed.

(Retroactive punishment is banned by the U.S. Constitution, but the Supreme Court ruled in 2003 that being placed on a registry doesn’t count as punishment. Since then, as evidence has emerged that registration is indeed punitive, the retroactive provisions of state sex-offense laws are being struck down: Several courts have ruled since 2016 that they violate the Constitution’s ban.)  

Under the Adam Walsh Child Protection and Safety Act, passed in 2006, states have been required to expand their registries to cover people convicted of a broader set of crimes. The number on Wyoming’s registry in 2011, for instance, rose to 1,450 from 125 after the state passed legislation compliant with the act that required children and teens to be registered. As other states try to comply by passing new laws, additional categories of people get put on their registries, Shehan says.

And sex-offense laws trigger long registration periods, making entry onto the list mostly a one-way door. In 19 states, sex offender registration lasts for life for adults; in 16 others, it’s 15 to 30 years; and in another 14, it’s a minimum of 10 years, according to the Restoration of Rights Project run by the Collateral Consequences Resource Center and its partner organizations.

NCMEC’s steadily inflating number is catnip for those who traffic in evergreen scare stories. One website advises parents to use the map in deciding where to move. States with high per-capita sex offender populations might not be a good choice, it implies. NCMEC itself may feed those fears with its marketing: On its website, photos of missing kids are adjacent to the link to its sex offender tracking map.

But research shows that sex-offender maps have almost nothing to do with protecting children. Nearly all sexual abuse is perpetrated by someone not on a registry; first-time offenders commit north of 90 percent of new sex crimes, according to studies in New York and Minnesota. Most sexual violence victims know their perpetrators—86 percent in a Bureau of Justice Statistics study published in 2000. And those with a sexual offense on their record have low sex-crime reoffense rates: 12 percent on average, according to a definitive 2014 meta-analysis of 21 other studies. Those same researchers found that reoffense risk declines the longer that someone lives in the community crime-free. For those who hadn’t reoffended by 10 years after an initial sexual offense, their risk of committing a new sex crime was 1 to 5 percent—a rate comparable to ex-offenders with no history of sex crime.

Sex-offense laws trigger long registration periods, making entry onto the list mostly a one-way door.

All of that might explain why the registry count and sex-crime rates are traveling in opposite directions. Multiple studies show rates of sexual violence falling significantly after the early 1990s. “I care about [the inflated count] from a policy perspective because it keeps people in fear,” said Alissa Ackerman, a California State University, Fullerton criminologist who was part of the 2014 Crime & Delinquency research team and has co-authored numerous studies of sexual-offense issues. “It keeps them wanting legislation—you know, we have to do something. … It’s maps like this and propaganda like this that keep people feeling that way.”

Ackerman says rather than expanding the list, more resources should be focused on sexual-violence prevention programs and on mental health services and treatment for people who have experienced and committed sexual abuse. “That’s not where we’re putting our money,” she said. “These policies don’t work—let’s focus on something that does work.”

Shehan says NCMEC’s map isn’t intended to scare people. The group’s prevention education materials make clear the danger of sexual abuse committed by a stranger on a registry is small, she says. But she acknowledges that message could be clearer on the map itself. “We’ve taken several precautions and made adaptations to the map in the past,” she said. “That’s one I can definitely add to the list of considerations.”

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