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The ‘Streamline’ Program to Prosecute Immigrants is Ensnaring Kids by Mistake

‘Operation Streamline’ speeds up immigration prosecutions.

U.S.-Mexico border fence in San Diego, California.
Mario Tama / Getty

The ‘Streamline’ Program to Prosecute Immigrants is Ensnaring Kids by Mistake

‘Operation Streamline’ speeds up immigration prosecutions.


On Aug. 1, a judge in the Southern District of California tossed aside a conviction of a minor, after the government found out that it had prosecuted and sentenced a Mexican citizen who was under 18 for a federal misdemeanor. Ordinarily, minors from Mexico arrested at the border are returned as soon as possible. Those from noncontiguous countries, like Honduras, are handed over to the Department of Health and Human Services, and those being charged with more serious crimes, like importing drugs, are handled in state courts, which have greater protections for minors. Federal defenders in the Southern District are now pointing to this botched case as the result of a program known as “Operation Streamline” which, since the beginning of July, has been expediting the prosecution of immigrants and allows them to be charged, plead guilty, and be sentenced in under half an hour.

Operation Streamline was expanded to the Southern District of California last month after the implementation of the Department of Justice’s “zero tolerance” policy in the spring, which aimed to prosecute as many people arrested at the border as possible. The court and federal jail system is now straining under the weight of a sixteenfold increase in prosecutions for misdemeanor illegal entry compared with last June. The Southern District created a special process in which people caught crossing the border would be held by Border Patrol until they arrived in court, where they would be offered the option to take a plea deal at their initial appearance. Through Operation Streamline, the court sought to relieve federal jails of the crush of people now being federally charged and accommodate the preferences of the executive branch.

On the evening of Saturday, July 21, Sabrina*, a Mexican citizen, crossed the U.S.-Mexico border near Tecate, California, and was spotted by a Border Patrol agent just a quarter of a mile from the border. She was then questioned, arrested, and spent the rest of the weekend sleeping on the floor of a Border Patrol station filled with other people arrested at the border. She was given a thin blanket and was not allowed to bathe or brush her teeth.

That following Monday, she was brought to a garage of the federal building in downtown San Diego. Since the beginning of Operation Streamline, the garage has been converted to a makeshift meeting room for immigrants being charged with federal misdemeanors and their lawyers. Sabrina had a few minutes to discuss with her public defender whether she would want to take a speedy plea deal or remain in federal custody as she fights her case.

Federal public defenders have described to The Appeal the significant pressure that immigrants like Sabrina face to plead guilty in exchange for a time-served deal, which would allow them, theoretically, to be returned to Mexico in a matter of hours instead of waiting in detention for days or weeks as their criminal case plays out. Having a federal misdemeanor on your record, however, carries serious consequences for your possible future immigration status in the United States.

With the government and the courts trying to rush through prosecutions, defense attorneys are scrambling to make sure they are providing adequate representation for their clients—and that means doing things like confirming their client is as old as they say they are. That Monday, Sabrina had told her lawyer she was born on Feb. 13, 2000, which would mean she was 18. Federal defenders have told The Appeal that they aren’t certain why some defendants misrepresent their ages during interviews with them. However, with only a few hours before their criminal case reaches the sentencing phase, defenders are unable to call family members or governments to confirm the age of their clients, something they do whenever they think a client might be a minor.  

The court wasn’t able to process all of the guilty pleas that had been entered that day, so Sabrina pleaded guilty to illegal entry, a federal misdemeanor, on the morning of Wednesday, July 25, before Federal Magistrate Judge Robert N. Block.

As immigration custody processed Sabrina for her removal from the United States, she gave her real birthdate, which established her as younger than 18. But by then, the government had already charged and sentenced a minor.

On Aug. 1, federal defenders, along with prosecutors, asked Judge Block to stop the judgment, which stays the decision of of a court after a verdict has been reached because it is erroneous or likely to be reversed. The federal public defenders placed the blame for this invalid prosecution on Operation Streamline.

“This error is tied to ‘Streamline,’” Ben Davis, an attorney at the Federal Defenders of San Diego, told Block in court. “There’s not enough time to interrogate the facts when there are so many pressures to plead guilty.”

Block granted the motion, but refused to assign blame to the expedited-prosecution program. “This is on the defense counsel during the interview process,” Block responded to Davis.

Davis explained that normally he would have time to investigate and get in touch with family members, but Block cut him off. “That’s another reason why you shouldn’t plead guilty,” he told Davis, saying he was not interested in commenting on Operation Streamline.

But the coercive nature of the process continues to put federal defenders in a difficult situation. The same day that Block charged and sentenced Sabrina for a federal misdemeanor, he also began refusing to accept guilty pleas unless defense lawyers stated their personal opinion that their clients weren’t being coerced to take plea deals. Attorneys from the Federal Defenders of San Diego refused to answer that question, citing a conflict of interest between what they believe—that Streamline is coercive by its very nature—and what’s best for their clients. The result has been that several clients were unable to plead guilty during their initial appearances despite their wish to do so.

“I have a duty of loyalty to the client and also I have a duty of candor to the court,” federal public defender Michelle Angeles told Block during an Operation Streamline hearing on July 25. “So that puts me in conflict with what my client wants and my duty to your honor to be honest about what my thoughts are answering the question.”

Block then told defense attorneys that he was worried about missing his train and that they could either say their client hadn’t been coerced to plead guilty or their client remain in custody.

“I cannot tell you that Operation Streamline is not coercive. I believe it is coercive. However, by saying this, you’ve now told my clients that it is my position and my concerns and my feelings that are keeping them in jail,” explained federal public defender Kimberly Trimble.

Later in the hearing, as federal defender Roxana Sandoval attempted to speak on behalf of her client before his sentencing, Block began to count down the seconds she had to do so:


THE COURT: The Court has to control its calendar. I’ll give you 60 seconds, 60 seconds.

SANDOVAL: I can’t limit the —

THE COURT: You’ve just wasted five of them.

SANDOVAL: — sorrow and grief that he has gone through because he —

THE COURT: You’ve just wasted 10 of ’em.

“Just for the record, I didn’t cut counsel off at 60 seconds,” Block noted after Sandoval finished speaking.

According to federal defenders, prosecutors are continuing to bring minors into federal courtrooms in their effort to prosecute as many immigrants as possible. On the afternoon of Aug. 3, for example, Judge Jill Burkhardt determined that a Mexican immigrant being prosecuted for misdemeanor illegal entry was a minor. Once the mistake was realized and the minor was brought into court to have their case dismissed, the courtroom was quickly cleared of press and observers to protect the child’s identity.  Judge Burkhardt then ordered the case sealed.

But Sabrina didn’t receive that type of treatment. By the time her judgment was arrested, she had already been deported.  

 

*Name changed to protect the identity of a minor.

For Some Local Prosecutors, the Post-Roe World is Already Here

As the potential demise of Roe v. Wade looms, past and current prosecutions of pregnant women illustrate what lies ahead.

Abortion protesters at a demonstration outside a Planned Parenthood office in Washington, D.C., last year. Protests were held around the country calling on the government to defund Planned Parenthood.
Photo illustration by Anagraph. Photo by Mario Tama / Getty Images

For Some Local Prosecutors, the Post-Roe World is Already Here

As the potential demise of Roe v. Wade looms, past and current prosecutions of pregnant women illustrate what lies ahead.


In December 2015, Anna Yocca was arrested for attempting to induce her own abortion with a coat hanger. She spent over a year in jail as Rutherford County, Tennessee, prosecutors tried repeatedly to bring felony charges against her. When an attempted murder charge didn’t stick, they indicted her in February 2016 on charges of aggravated fetal assault. To do so, they relied on a 2014 law intended to criminalize drug use during pregnancy. But with the contested law set to expire in July of that year, and no evidence that Yocca had used drugs, that failed too.

That didn’t deter prosecutors: Next, they brought three new felony charges against the 32-year-old. Facing charges of attempted criminal abortion, aggravated assault with a weapon, and attempted procurement of a miscarriage, Yocca pleaded guilty in January 2017 to the latter in exchange for her release.

Cases like Yocca’s often seem like a glimpse into a dystopian future, especially now, as anxiety mounts over the tenuous fate of Roe v. Wade. When Justice Anthony Kennedy announced his retirement in June and President Trump tapped Brett Kavanaugh, a staunch conservative, to replace him, journalists and advocates were quick to predict doom for reproductive rights. But in many localities across the country, women like Yocca already know what it’s like to live in a post-Roe world, a world dominated by state lawmakers and local prosecutors.

“When they are determined to control and prosecute pregnant women, [prosecutors] are extremely resourceful, if you will, creative, and can be relentless in their determination to find a way to lock up women for having had abortions,” Lynn Paltrow, executive director of National Advocates for Pregnant Women (NAPW), told The Appeal. (Paltrow and her NAPW colleagues advised Yocca’s defense attorney throughout the ordeal.) The Rutherford County district attorney’s office did not respond to requests for comment.

While the overturning of Roe would indeed be devastating to the reproductive freedom of pregnant and non-pregnant women alike, advocates say that more arrests are inevitable either way. “For many of the people we work with and for, Roe has become increasingly meaningless,” says Jill Adams, founder and chief strategist of the University of California, Berkeley School of Law’s Self-Induced Abortion (SIA) Legal Team. “We are in a moment of crisis, we’ve been in a moment of crisis, and how bad the crisis will become is probably a matter of degree.”

Both Adams’s and Paltrow’s organizations have documented dozens of arrests of pregnant women after Roe. Between 1973, the year of the Roe decision, and 2005, NAPW documented 413 cases across 44 states in which “a woman’s pregnancy was a necessary factor leading to attempted and actual deprivations of a woman’s physical liberty.” The majority of these arrests and detentions were made using criminal laws that were never intended to target pregnant women. Adams and her colleagues at SIA documented 21 post-Roe arrests of women in connection with self-managed abortions induced outside clinical settings, many of which involved ending a pregnancy by self-administering abortion pills.

Feticide laws in particular have increasingly been used to target women who end their pregnancies. Currently, 38 states have fetal homicide laws on the books, the majority of which can be applied at any stage of a pregnancy, according to the National Conference of State Legislatures. Most of these laws were introduced to punish violent acts by third parties against women that result in the end of their pregnancies. But in some states, prosecutors use these laws to punish pregnant women themselves.

Perhaps best known among these cases are those of Bei Bei Shuai and Purvi Patel in Indiana. Lawmakers enacted a feticide statute in the state six years after Roe, two years after the state repealed its ban on abortion.

In 2011, Bei Bei Shuai was charged with attempted feticide in Marion County, Indiana, after trying to end her life by eating rat poison. While being treated for poisoning, she delivered a child that soon died from a bleed in her brain. Shuai spent more than a year in jail before being released after agreeing to plead guilty to criminal recklessness. In exchange, the Marion County prosecutor dropped the attempted murder and feticide charges against her.

In 2013, Patel sought to end her pregnancy using misoprostol and mifepristone, abortifacient drugs she purchased online. After delivering a 25-week-old stillborn fetus at home and disposing of its remains, she sought assistance at a hospital in Mishawaka while rapidly losing blood. Patel was later convicted of feticide and sentenced to 20 years in prison. Though Patel’s sentence was later overturned by an appellate court, both her case and Shuai’s remain prime examples of how feticide laws can be twisted, regardless of their original intent, by prosecutors seeking to burnish their own reputations by punishing pregnant women.

Kathrine Jack, an Indiana-based attorney who represented Shuai and amicus curiae in the Patel case, believes the appellate opinion that overturned Patel’s sentence is binding and should prevent similar prosecutions under the state’s feticide law. “That opinion was pretty clear in saying it was not intended to prosecute the women in relation to their own pregnancies,” Jack said. In March, the state’s feticide law was amended to clarify that it is not to be used against women who end their pregnancies, further solidifying its original intent.

Yet in February, a Madison County prosecutor charged another woman with feticide and involuntary manslaughter after the death of her newborn son, which was attributed by doctors to the 34-year-old’s use of meth and other drugs during her pregnancy. “Every county in Indiana has a prosecutor, and despite the outcome in the Shuai and Patel cases, future cases are in the hands of all the different prosecutors at this point,” said Jack. “Obviously, this prosecutor in Madison has a different interpretation [of the Patel opinion].”

In addition to feticide laws, some local prosecutors are dredging up archaic, rarely used laws to incriminate women who end their pregnancies in nonclinical settings. Such was the case in Chesterfield, Virginia, last year, after police found fetal remains in a woman’s backyard. The woman, Michelle Roberts, was arrested on charges of “producing abortion or miscarriage,” a 1950 law that criminalizes any action taken “with intent to destroy her unborn child.”

Lawyers from SIA, NAPW, and the ACLU of Virginia are all assisting with Roberts’s case. As with feticide laws, advocates argue that the charge brought against Roberts relies on a misinterpretation of the law’s original intent, which was to punish third parties, namely abortion providers. “Michelle is standing trial for a nonexistent crime,” Adams said.

Last September, Judge David Johnson of Chesterfield County rejected a motion to dismiss the case filed by Roberts’s lawyer, writing in his opinion that the law does not exclude the prosecution of expectant mothers. Because the case is ongoing, the commonwealth attorney’s office of Chesterfield County declined to comment.

While Adams and her colleagues are working on a legislative strategy to “clean up antiquated abortion laws,” she said, and build on legal precedent from the Ninth Circuit that struck down Idaho’s abortion ban in 2015, they are also focusing their attention on prosecutorial power.

“Because overzealous prosecutors are reaching and grabbing for whatever charges they can throw that will stick on a person, there’s culture change work that needs to happen in the legal field,” said Adams, adding that groups like hers are trying “to educate members of the bar and bench to avoid unnecessary prosecutions.”

“The legality [of self-managed abortion] at any time in any state is governed by a complex cobweb of criminal and civil laws and regulations, and then it’s influenced by the powers of law enforcement,” she said. “All of this is made even less predictable because of prosecutorial discretion and how far that reaches.”

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Harris County DA Ran as a Reformer. So Why is She Pushing High Bail for Minor Offenses?

An email obtained by The Appeal shows Kim Ogg's office is intentionally asking for unaffordable bail amounts to hold certain people in jail in Texas.

District Attorney Kim Ogg was sworn into office in January 2017.
KimOgg.com

Harris County DA Ran as a Reformer. So Why is She Pushing High Bail for Minor Offenses?

An email obtained by The Appeal shows Kim Ogg's office is intentionally asking for unaffordable bail amounts to hold certain people in jail in Texas.


When Harris County District Attorney Kim Ogg was running for her seat in 2016, she took a firm stance against the Texas county’s cash bail system, calling it “a tool to oppress the poor” on her campaign website. But internal instructions obtained by The Appeal indicate that her office is still pushing for high bond amounts for minor crimes like marijuana possession and criminal trespass.

The email from Ogg expressly asks prosecutors in her office to request high bond amounts for select defendants, emphasizing that “misdemeanor high bond requests should be $15,000.”

Sent privately to attorneys in her office in December, Ogg wrote: “This directive is coming directly from me.”  

While running for election, Ogg generated excitement among criminal justice reform advocates with her outspoken pronouncements against the bail system. On her campaign website, she blamed the incumbent DA and judges who “utilize a bond schedule that is now the subject of a multi-million dollar lawsuit because it is unconstitutional.”

“Holding low-level offenders who can’t bond out because they’re too poor is against the basic principles of fairness,” she told The Guardian in April 2017, three months after she assumed office.

But the email Ogg sent in December reminded her staff it was their “duty as prosecutors to preserve public safety and to help assure the appearance of defendants in court. In the instances sent out by [assistant district attorney] Amanda Petroff, we must be on record requesting a high bond,” she wrote.

The Petroff email she forwarded said it was “imperative that we file motions for high bond & bond conditions at intake (misdemeanor and felony).”

The examples she gave were defendants currently on bond, currently on deferred adjudication or probation, those with extensive criminal history, “or any other situation where in your judgment the defendant should not be given a PR [personal recognizance] or standard bond.” Petroff wrote that misdemeanor high bond requests should be $15,000.

Trisha Trigilio, a lawyer for the ACLU of Texas, called the email “frustrating.”

The Appeal found a number of misdemeanor cases in which Ogg’s office filed motions for high bond, but where the judge disagreed, ultimately setting bond lower.

In February, Ogg’s office asked for $15,000 bond for John Crain, a man charged with misdemeanor theft, because it said he was under the supervision of a criminal justice agency at the time. In that case the judge set Crain’s bond at $1,000. Also in February, Clifford Holmes was charged with Class B possession of less than two ounces of marijuana. The DA’s office filed a motion asking for $15,000 bond because it said Holmes was already out on deferred adjudication for unlawfully carrying a weapon in his car. The judge disagreed with the amount, setting bond at $1,000. Eric Allen, accused of trespassing, had his bond set at $3,000; the DA’s office had requested $20,000. Also charged with trespass, Jermaine Chambers’s bond was set at $2,500; Ogg’s office had asked for $15,000.

In one case in May, Ogg’s office asked for bond “of no less than $100,000.” The accused, James Sam, had been charged with a misdemeanor violation of a protective order (he messaged someone he was forbidden from contacting). In that case the judge granted a bond of $10,000, 10 percent of what the DA’s office had requested.

Asked to look at these specific cases where the DA’s requests for high bonds had been refused, Trigilio, a staff attorney for the ACLU of Texas told The Appeal, “No matter what someone’s criminal history [is], these are such minor offenses…the request for bail exceeds what some of these people make in a year.”

The crimes these people were accused of—offenses like criminal trespass, a charge often levied against homeless people sleeping on the street—were nonviolent, Trigilio pointed out. “[Criminal trespass] is one of the lowest level crimes you can be charged with, and the bond amount far exceeds what someone could ever be fined for this offense. It’s frustrating when you see what’s in that email [from Ogg] if you compare this to what she says publicly.”

“Prosecutors have a responsibility to work for what’s fair, not what’s harsh,” Trigilio continued. “Bail recommendations should always be individualized, and they should be the least restrictive conditions possible.”

She said it’s never appropriate for a DA to ask for $15,000 bond for charges like marijuana possession, and pointed to research showing that releasing people based on their promise to pay if they don’t turn up in court is just as effective as requiring money bail up front. “Forcing someone to buy their release doesn’t increase rates of appearance in court,” she said. “It actually makes things worse—people wind up sitting in jail for longer, which disrupts their lives and increases the chance that they’ll commit more crimes in the long run.”

In 2016, the nonprofit groups Civil Rights Corps and the Texas Fair Defense Project sued Harris County on behalf of poor defendants arrested on misdemeanors who couldn’t afford to pay bail. In April 2017, a federal district judge issued an injunction calling the county’s bail practices unconstitutional. That order was largely upheld in February by the Fifth Circuit Court of Appeals, which found that Harris County’s bail practices discriminated against poor misdemeanor defendants. Ogg filed a brief in support of bail reform in 2017 and celebrated the district judge’s ruling, saying, “From now on, people can’t be held in jail awaiting trial on low-level offenses, just because they are too poor to make bail. … We welcome the ruling and will comply fully with it.”

The federal district judge issued new rules in June requiring Harris County to release people charged with certain offenses like drunken driving or writing bad checks if a person with money in the same situation could make bond. On Tuesday, Harris County misdemeanor judges claimed in federal appeals court that the new rules would endanger public safety.

When asked to account for his office’s high bond requests for misdemeanors, Harris County’s First Assistant District Attorney Tom Berg blamed a risk-assessment tool which, he told The Appeal, is being misapplied by judges to set bond too low. “If we remained silent the magistrate would likely set bail and conditions based on the tool,” he wrote in an email. “The police and the public would also accuse us of ‘setting’ a low bail even though it was the magistrate who did it.”

Berg argued there is a small subset of people charged with misdemeanors who present a flight risk or are so dangerous that they can’t be trusted to reappear in court or keep out of trouble, but Texas allows preventive detention only under strict conditions. As a result, prosecutors are strategically requesting bond amounts they know the individual can’t afford, Berg said. “We are still operating under a cash bail system where if we want to hold someone because that person is dangerous, the only mechanism we have is to ask for cash conditions greater than a person can make.”

Berg said the issue is more nuanced than many people understand.We really are trying to get most of the people out of the jails. … We’d like to divert those minor cases completely out of the criminal justice system. In many respects we’re trying to make the best of what we’ve got here until it can be reformed.”

Berg said the DA’s request for a high bond is made in writing for “public safety reasons,” even in nonviolent misdemeanor cases—“in order to memorialize our justification and articulate why a particular defendant is a greater risk of flight or danger than that predicted by the risk assessment tool.”

Jocelyn Simonson, Associate Professor of Law at Brooklyn Law School, said Berg’s statement is an admission that the DA’s office is using money bail as a form of de-facto pretrial detention. “[They’re admitting] to asking for high bail with the clear intention of causing someone to be held in jail pretrial because that person can’t afford to pay the amount they’ve requested.

“[Berg] makes it sound like they have no choice but to ask for high bail. That’s not true. There’s an alternative. Ogg could stand up on the record in every case and say this office is not going to ask for money bail for an amount someone can’t afford because it offends notions of fairness. But she’s not saying that.”

Jennifer Laurin, Wright C. Morrow Professor of Law at The University of Texas School of Law, noted that prosecutors and defense attorneys are often still operating with limited information about a case when bond is being set. “It’s at an early stage in a prosecutor’s relationship with the case and the defendant,” she said, “so I think it’s fair to be skeptical of unilateral determination by prosecutors that someone is more dangerous than indicators suggest.

“What kinds of potential biases are entering into that calculus? It should give one pause about a practice continuing where prosecutors can unilaterally reach those conclusions without an adequate airing of the basis for them.”

What’s more, a study published in 2016 by the Quattrone Center for the Fair Administration of Justice, a national criminal justice project at the University of Pennsylvania Law School, said the cash bail system could actually harm public safety. In Harris County alone, the study found that defendants accused of misdemeanors who were jailed before trial were 25 percent more likely to plead guilty, 43 percent more likely to be sentenced to jail, and ended up receiving sentences more than double the length of defendants in similar situations but who were not incarcerated before their trials.

In addition, it found that in Harris County, pretrial detention had what it called a “criminogenic impact,” appearing to actually cause those who were detained to commit more crimes after their release.

Paul Heaton, an economist at the University of Pennsylvania and one of the study’s authors, told The Appeal that a prosecutor may think high bail is the only tool available to detain individuals that they believe present a substantial risk to public safety. “High bail can amount to code for ‘we think this type of defendant is enough of a risk we shouldn’t be releasing them,’” he said.

But Heaton also offered the following scenario: If someone is arrested for disorderly conducted and can’t afford bail, they might spend a couple of days in jail. “What’s their employer doing during that time? What if a rent payment is due? What’s happening to their kids? There’s potentially a lot of disruption.”

If an arrest is for a minor misdemeanor, Heaton said a defense attorney may recommend that her client pleads guilty so he will be released for time served. “If that person says ‘but they got the wrong guy’ the attorney could argue the case, but the trial date may not be for another week. Research shows detaining people destabilizes their lives in terms of housing, employment, family relationships, and transportation. It’s ironic that these policies which are enacted to preserve public safety actually end up creating more crime down the road.”

Sandra Thompson, director of the Criminal Justice Institute at the University of Houston, agrees that a large part of the problem is with the traditional money bond system that Texas employs. “What judges are allowed to do varies depending on the charged offense, not based on results of a validated risk assessment,” she told The Appeal. Thompson said it’s hard for an outsider to evaluate the cases that The Appeal found without studying them closely. “If prosecutors are asking for money bail and it’s high, and yet the risk assessment says this person is not a high risk, then that’s a problem.”

Laurin said that if Ogg’s position is that she’s operating within a system not of her making; that her hands are tied and that she has to ask for high bond because she’s determined that some people will not turn up at court or will reoffend if they’re freed, then “a better approach would be to engage with the county and magistrates to get a functional risk assessment tool … let’s get an objective process in place we can all agree on.”

But the policy could be a political “hedge,” Laurin said, that Ogg wants simultaneously to be seen as progressive but that she’s also throwing a bone to anyone not on board with the reforms that the bail litigation has pushed for or who are risk-averse to the political fallout from the public safety consequences of releasing someone who could then reoffend.

“It’s possible both of these things are in the mix,” she said.

The ACLU’s Trigilio said it’s important to remember that the Supreme Court has held for decades that when bail is designed to ensure appearance, it cannot be excessive. “Courts are required to consider less-restrictive alternatives to make sure a person comes back to court. If a promise to pay for failure to appear is going to do just as good a job as making people pre-pay for release—which is what study after study shows—then courts should be releasing people based on their promise to pay. What’s most frustrating is if anyone should know this research, it’s officials in Harris County.”

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