Texas DAs refuse Border Patrol cases

For years, Laredo prosecutor Joe Rubio took on Border Patrol drug-smuggling cases as a courtesy to his federal counterparts. But more recently, as the Patrol doubled its staff and generated thousands of additional arrests, his act of benevolence has become a burden.

That's why Mr. Rubio, along with most of the district attorneys on the Texas-Mexico border, refuses to take any more federal cases.

Their quiet rebellion represents a red-flag warning that America's eight-year buildup along the US-Mexico border is showing signs of strain.

While prosecutors shrink from calling it a "boycott," their move is forcing a reexamination of the approach to criminal justice in the area and could impact America's fight against narcotics trafficking. "We want to fight the war on drugs, but we want to be equal partners," says Rubio, district attorney for Webb and Zapata counties, who stopped taking cases after years of asking Congress to reimburse the counties for costs. "We realized we're being taken advantage of here."

In recent years, Congress and the White House have outspent each other doubling the manpower of the US Border Patrol and increasing the staffs at the Drug Enforcement Agency and the US Customs Service as well. Somehow, adding law clerks, judges, and prosecutors to handle the increased caseloads didn't seem as "sexy" as adding another man in uniform. Now the Texas court system, from Brownsville to El Paso and beyond, is bursting at the seams.

"Border areas have not been paid attention to historically, and now these guys are overworked," says Rodolfo de la Garza, director of the Tomas Rivera Policy Institute at the University of Texas in Austin. "It's surprising that it has reached this point, but it's in line with the movement of states to pay for the implementation - and failure - of US immigration policy."

The number of federal drug busts and illegal immigration cases springing from the increased Border Patrol presence is staggering. The five US federal districts that stretch from California to the Texas Gulf Coast handle more than 26 percent of all criminal court filings in the United States. Drug prosecutions in these border courts nearly doubled between 1994 and '98, from 2,864 to 5,414 cases, and immigration prosecutions quintupled, from 1,056 to 5,614.

In Texas, border district attorneys say they support the goals of drug and immigration prosecution, but have ceased taking federal cases as of Oct. 1, because of their cost. Only two prosecutors continue to accept federal cases. In return, they receive a portion of a $12 million federal emergency appropriation, passed by Congress this summer. Each of the four border states will divide equally the money, which is intended for court costs and jail construction.

Those who have joined the boycott says Texas's $3 million share of the federal piggybank doesn't come close to meeting the bulk of their costs. Federal drug cases in Webb County alone cost some $1 million a year to handle, says Rubio. With federal money stretched thin, the financial burden shifts to the citizens of South Texas, among the poorest regions in America.

"What started as a courtesy became a practice, and then almost an expectation, and then almost a demand," says Yolanda de Leon, district attorney for Cameron County in Brownsville. She and other border prosecutors made their pleas for assistance to Congress and to the Department of Justice, she says, but "Washington didn't get it. They simply didn't understand the reality of how things work."

"When we were doing 10 cases for them, we could fit that into our framework," says Ms. De Leon, who says that 20 percent of her caseload is federal drug busts. "But when it became 300 to 500 cases, we can't do it anymore. And you know what? They [the federal courts] couldn't do it either."

Jaime Esparza, district attorney in El Paso and Hudspeth Counties, used to take 800 federal cases a year for El Paso and Hudspeth Counties. But not anymore. "To ask counties that are the poorest in the country to share that burden, it's not reasonable," says Mr. Esparza, whose office handles some 2,100 felony cases a year, four times the national average.

"The federal government needs to have a complete budget when it considers fighting the drug war," Esparza adds. "It's not just one more Border Patrol agent. We are very short on federal judges. And if you bring a federal judge, you'll need probation officers, assistant US attorneys, a bailiff, court reporters, a translator."

To get an idea what shifting the caseload back to federal courts will do, it's instructive to visit the courtroom of US District Judge George Kazen in Laredo. Until this year, the federal judge had one of the busiest court dockets in America, hearing some 1,200 casesa year. Other federal judges used to drive to Laredo for a week at a time to help. To try to clear Kazen's docket, one judge, Fred Biery of San Antonio, conducted court sessions by close-circuit television from his office in San Antonio. Defendants made their pleas into a camera, while Judge Biery's face observed them on a TV screen.

This year, Judge Kazen got some relief. Another federal district judge now shares his 1,100 case backlog, and two new federal magistrates handle some 3,000 misdemeanors, the bulk of them originating from Border Patrol drug busts.

"We were just swamped," says Judge Kazen. "The state courts were always a safety valve.... Without that, everyone is trying to cope the best we can."

Assigning blame for this judicial logjam is almost as difficult as solving it. Justice Department officials contend that the Republican-led Congress has routinely turned down Clinton administration nominees for federal courts. Congressional aides retort that it is the White House that has been dragging its feet and shirking its responsibility on the border.

"We annually take on the Justice Department for not filling judgeships," says John Lampmann, chief of staff for Rep. Lamar Smith (R) of Texas, chairman of the House committee on immigration.

"There is no doubt that we need more judgeships, and the chairman is proposing legislation to provide them," says Mr. Lampmann, adding that the end of the congressional session, along with a presidential election are likely to delay that judicial relief for the foreseeable future. "From a timing point of view, we just understand it won't be until next year."

(c) Copyright 2000. The Christian Science Publishing Society