Legal Thoughts on Operation Streamline

In 2005 the Department of Justice enacted Operation Streamline, and began treating undocumented entrants as felons. Operation Streamline is a federal program in the southwestern United States that fast tracks undocumented immigrants through the criminal justice system. Prior to 2005, undocumented immigrants were sent almost exclusively through the civil immigration system. Now, prosecutors and judges are left with no discretion, and even first-time offenders are "charged" with a federal felony under the zero tolerance policy.

Barnyard Justice

I sat through one of Operation Streamline's "trials" in Tucson, AZ in 2009. Though judges may opt to try each offender separately, groups of ten men were sentenced at a time, taking but a few hours to get through over 60 men. Sentencing varied depending on whether this was a first-time offender, though I did not see any person sentenced individually. Rather, the judge chose to group together first, second, and third-time offenders. As described by another viewer: "The only words the defendants uttered were "presente," "si," "no," and "culpable" or "guilty." After being sentenced, one defendant, while being escorted out, shot a volley of questions to his court-appointed lawyer. His lawyer patted him on the back and told him everything would be all right. These 10 seconds are what seem to pass for legal counsel." Herding is the only word that comes to mind when trying to describe this program.

Attorneys' Roles in Illegitimate Systems

Attorneys representing these detainees meet with their clients an hour or so before the trial. Counsel does no preparation), and the attorney's one job is to explain the charges to their client. There is no negotiation; no opportunity to do even "Popeye's dance". These attorneys are stand-ins so that when the media attends these trials and publish photos, the offenders always have "representation", which in reality is merely someone to tell them when to say yes or no. These are sham trials in which felony charges are summarily dismissed so that we can lock non-violent men and women up on the lesser charges. Though I had already decided to attend law school, I decided that day that that was the type of attorney I didn't want to be.

The attorney I met with after the trial cried when discussing her role in Operation Streamline. She felt like a peon of a dehumanizing system that arrested undocumented immigrants in droves to then release them with the comfortable knowledge that they would try to re-enter. Yet, she felt that her "clients" took comfort in her presence during trials. And maybe there is value in offering pure human companionship when your client is being treated as a stockyard animal, sentenced to imprisonment in a language they don't understand. I wonder, however, if those she represented harbored hopes that her presence was more than a mere performance.

Legitimized Dehumanization

The dehumanizing aspects of Operation Streamline have significance for the American justice system in general. Illegitimacy and acceptance of a system that functions in illegitimate ways leads to increased tolerance for similar policies. Though I believe many of the attorneys representing clients who were being "Streamlined" were working within the system in the only way they knew how, as opposed to leaving their clients wholly without representation, the ability to treat these men and women as sub-human contributed to an environment in Arizona that led to the passage of xenophobic laws that cemented the idea of sub-human classes of persons.

Though the mass plea procedures used in Operation Streamline ended in 2009 with United States v. Roblero-Solis, and Escamilla-Rojas was the Court’s “last encounter with Operation Streamline in a published opinion,” (United States v. Aguilar-Vera, 698 F.3d 1196, 1198) a decision based on “harmless” procedural error does not make explicit what should be overriding disapproval of patently unconstitutional processes. I don’t wish to downplay the importance of this procedural error; confirming that a defendant comprehends the nature and consequences of his or her plea, as well as individually addressing the defendant should be the very essence of a plea hearing.

With only the best intentions, the defense attorneys who “represent” these clients are perpetuating a systematically unconstitutional framework. If defense attorneys refused to represent clients until given adequate time to offer true representation, there is no line of public defenders waiting to take their place, but would such an extreme stand against an unjust framework serve any purpose? The criminal justice system is sated with indigent defendants in need of proper representation; the problem is certainly not unique to Operation Streamline (see http://www.usatoday.com/story/news/nation/2013/03/12/you-have-the-right-to-counsel-or-do-you/1983199/). More troubling, however, is that these cases affirm that Operation Streamline’s mass plea hearings do not violate procedural due process of the detainees. Therefore, procedural elements (attorneys representing several clients in one plea hearing, minimal contact between client and attorney before the hearing, limited ability to see if viable defenses are available or worth pursuing) that don’t even offer the minimum idea of representation have been accepted by the court as comporting with due process (see, for example, Escamilla-Rojas, F.3d at 1062).

I don’t wish to give the impression that I would not perform the work of a public defender; instead, I insist on doing work where I can adequately devote attention to my client, and fear that the two may be at odds with one another.

Where to Go Now?

I believe the temporary success of SB 1070 and its successors in Alabama and Georgia is at least partially the result of allowing programs like Operation Streamline to succeed. As an attorney, I have decided to never work within a system that I think it not only flawed, but hostile to justice. The tricky part is finding a way to combat programs like Operation Streamline when all that I have ever known is working and learning in pre-existing, structured environments. Possibly, I am suited to work dismantling these structures by staying out of court and working at a foundational, policy level.

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