Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
Last month, I toured the southeast border of Texas and Mexico together with NACDL Past President Drew Findling. Drew and I traveled to the border region near McAllen, Texas, to explore the workings of Operation Lone Star — the response by Gov. Greg Abbott of Texas to the increased numbers of men, women, and children fleeing economic, political, and gang violence in Central America and Mexico.{1} 1 https://www.dps.texas.gov/news/operation-lone-star-news. We visited processing and detention centers for would-be immigrants,{2} 2 Significantly, recent waves of immigration consist increasingly of families seeking safety (economic, political, and personal) rather than single men seeking work. That is, recent waves of immigrants include a high and growing percentage of families as compared with the historic flows of single males who come alone in order to send money home or later bring their families through more secure routes. and interviewed detainees and their lawyers in order to understand the workings and appreciate the impact of Gov. Abbott’s signature initiative. When I stepped back on the plane in San Antonio after three days at the border, I felt as though Roman Polanski had remade Chinatown, his 1974 Oscar-winning tale of corruption, crime, and greed set in 1930s Los Angeles — with the beautiful but harsh Texas scrub in mind.
What Is OLS?
On March 4, 2021, Gov. Abbott launched Operation Lone Star (OLS), a multibillion-dollar, statewide law enforcement effort “to secure the border, stop the smuggling of drugs, weapons, and people into Texas, and prevent, detect, and interdict transnational criminal behavior between ports of entry.”{3} 3 https://www.dps.texas.gov/news/operation-lone-star-news. OLS uses state misdemeanor laws, principally trespass, to “catch-and-jail” immigrants who have crossed the border into Texas. OLS is designed to counter what Gov. Abbott describes as the Biden administration’s “catch-and-release” policy.{4} 4 In May 2021, Abbott issued a disaster declaration — which now covers 53 counties, most of them on or near the border — to give him the authority to deploy the Texas National Guard to the border. The state agencies responsible for OLS are the Texas Department of Public Safety and the Texas Military Department. OLS has jailed close to 6,000 people since March 2021.
Why Should a Criminal Justice Audience Care?
Putting aside our personal opinions regarding the nature, causes, and best responses to immigration from Central America and Mexico, OLS has created a criminal justice crisis inside the Texas border. OLS uses and abuses criminal laws to break the will of would-be immigrants who have reached the border and, further, to dissuade others from making the journey before they set off. OLS represents the systematic abuse of state criminal laws to manufacture minor criminal charges (principally trespassing on empty ranch or hunting land) in order to detain immigrants for months in Texas prisons.{5} 5 We learned that, for the first time, Texas prisons are being used to house pretrial misdemeanor detainees. Like “family separation,” OLS is designed to dissuade future immigrants by causing pain to current immigrants — the pain of extended detention for offenses that would never have been charged, let alone systematically charged, in any other context.{6} 6 Abbott has often touted drug seizures and arrests of people accused of violence, but the arrests do not support this claim.
Our Texas colleagues have not been asleep at the reins. NACDL Past President Gerry Morris, board member Angelica Cogliano, newly minted member Addy Miro, and their colleagues{7} 7 The complaint was also authored by Susan Hutchison and S. Rafe Foreman. have challenged the core of OLS — punishing migrants for being migrants — in a federal civil action. “Under the guise of state criminal trespass law but with the explicit, stated goal of punishing migrants based on their immigration status, Texas officials are targeting migrants,” according to the complaint.{8} 8 The complaint asks the court to find that the operation violates federal law, order the state to stop the arrests, and award each migrant illegally detained $18,000 for each day they were imprisoned beyond what is allowed by state law. See https://storage.courtlistener.com/recap/gov.uscourts.txwd.1171130/gov.uscourts.txwd.1171130.1.0_1.pdf. “Hundreds of those arrested have waited in jail for weeks or months without a lawyer, or without charges, or without bond, or without a legitimate detention hold or without a court date.” As Gerry, Angelica, and Addy argued, the practice of “catching-and-jailing” immigrants skirts constitutional restrictions that bar states from enforcing federal immigration law,{9} 9 Maricopa County (Arizona) Sherriff Joe Arpaio learned this lesson the hard way by targeting Latino drivers in an effort to deliver them to federal immigration custody for deportation. OLS appears to be an attempt to sidestep the constitutional and statutory limitations that ended Arpaio’s illegal efforts and cost taxpayers over $178 million. https://www.mercurynews.com/2021/10/29/former-sheriff-arpaio-cost-arizona-taxpayers-about-100-million. and, not surprisingly, OLS targets Black and Latino migrant men.
How Does OLS Work?
To appreciate the criminal justice crisis created by OLS and its human toll, we need to dissect how OLS works day-to-day.
First, would-be immigrants enter the United States but are not detained at or near the border. Instead, Texas law enforcement personnel detain immigrants on or near private land (typically open ranch land or hunting land) as they walk north from the border across the dry, unforgiving scrub. Some are detained as they cross empty land, but, significantly, many detainees reported that Texas officers moved them before the arrest from public land (for example, the shoulder of a highway or road) onto private land.{10} 10 These detentions typically occur in counties with prosecutors friendly to OLS. Some counties refuse to prosecute these charges.
Second, Texas then charges these individuals with criminal trespass and, occasionally, with evading arrest. Immigrants are then processed through newly constructed facilities owned by a private contractor (Recana, based in Texas) located in OLS-friendly counties.{11} 11 State police have arrested more than 3,000 men in Kinney County alone on trespassing charges between July 2021 and May 2022. Migrants are typically arrested on its many hunting ranches or at a remote railyard. https://www.texastribune.org/2022/05/10/texas-border-migrant-trespassing-trial. Processing includes remote “magistration” — a virtual hearing during which the magistrate arraigns the detainee and sets a release bond which, as discussed below, will most likely be seized or forfeited once the detainee is eventually moved to immigration custody and deported.
Third, after “magistration,” the detainees are moved into Texas jails, where they remain for many months during which they have little or no access to counsel (due to lack of counsel and geographic isolation) or to their families (due to the expense of the paid telephone system).{12} 12 We met numerous migrants, detained over five months, awaiting the opportunity to plead guilty so that they could be deported. Many of them had never seen a lawyer or had had minimal contact with a lawyer. Detainees eventually plead guilty and, after pleading, they are moved to Customs and Border Patrol custody for deportation. Now they are saddled with a criminal conviction that will impact their current immigration claim and any future attempts to seek relief in the United States or elsewhere.
OLS Leverages the Trial Penalty to Secure Pleas
To date, only one detainee, Lester Hidalgo Aguilar, has elected to go to trial. He was detained nearly nine months before going to trial on a case with a maximum sentence of one year in custody. Mr. Aguilar claimed that he had fled Honduras after being threatened and tortured by cartel operatives.{13} 13 At sentencing, Mr. Aguilar showed what he said was a machete-inflicted scar on his forehead and raised his hands to reveal that his pinky had been taken when he was kidnapped and tortured by cartel operatives. Mr. Aguilar was convicted and, at the express request of the prosecutor,{14} 14 In this misdemeanor trial, Tony Hackebeil, a San Antonio attorney, led a prosecution team of three. Forgetting that the purpose of the trial was to determine guilt, Hackebeil asked the jury to “[s]end the message to not just your community that you agree this should not be allowed to happen. But send a message as loud as you can to all of those people who are continually doing this. We just happened to pick Lester Hidalgo Aguilar.” State District Judge Roland Andrade gave Aguilar the maximum punishment for trespassing: one year in jail, but, over objection by the three prosecutors, Andrade declined to impose a $4,000 fine. https://www.texastribune.org/2022/05/10/texas-border-migrant-trespassing-trial. received the maximum sentence (one year in custody) as a message to would-be immigrants to stay away. One could hardly imagine a better example of my favorite theme, the trial penalty. Texas prosecutors — all three of them in this misdemeanor trial — expressly framed this trial to send a message to other immigrants contemplating trial: plead to credit for time served (on average three to six months for these nonviolent misdemeanors) or max out at a year in custody. Mr. Aguilar’s fate was an object lesson for all detainees: Much better to surrender any defense you might have than sit in detention for months knowing that Texas will hammer you for having the audacity to try your case.
OLS Appears to Be Designed to Seize Bonds Posted by Impoverished Immigrants
As discussed above, OLS effectively extracts funds from these extremely impoverished migrants by setting up a system that frequently results in forfeiture of state criminal bonds. Many immigrants post bond after “magistration,” often with family assistance, in hopes of obtaining relief in immigration courts, but these state criminal bonds systematically end up in Texas county pockets. First, prosecutors are requesting, and judges are making, the “fine” amount equal to the bond posted by an accused regardless of the facts or circumstances of the case. Second, bonds are typically forfeited to the county after deportation of the detainee.{15} 15 Bonds are not forfeited automatically, but the process appears to be designed to encourage failures-to-appear resulting in forfeiture. For example, clients are required to appear by Zoom from home countries so frequently that they often fail or give up. Occasionally, clients are ordered to appear in person. One judge responded, when defense counsel explained that the client could not appear because of removal to his home country, “Not my problem. He shouldn’t have gotten arrested.” Also, few bonds have actually been returned because courts will not send them to a foreign address, even after people who were on bond pleaded guilty. Friendly OLS counties thereby receive the forfeited funds of impoverished immigrants who, in many cases, have sold everything and even borrowed from friends, relatives, or other “less forgiving” sources in order to make the journey.{16} 16 Many immigrants borrow thousands of dollars from coyotes or the equivalent of loan sharks. While on the subject of funding OLS, OLS prosecutions are financed, in part, by monies earmarked for COVID relief.{17} 17 “Texas this year transferred money away from its public health and safety agencies and to the governor’s office to administer Operation Lone Star. That cash, totaling nearly $1 billion, was available because the state had backfilled those same public health and safety agencies with stimulus funds it received from Washington, according to interviews with local officials, submissions to the Texas Legislature and missives from the governor’s office itself.” https://www.washingtonpost.com/us-policy/2022/05/06/texas-coronavirus-stimulus-immigration-border.
Who Are We?
Putting aside the morality of financially exploiting impoverished immigrants, OLS converts them — by policy and not by their own intention — into criminals. As a lifelong defender and the son of immigrants who faced no obstacles coming to this country thanks to their economic means, education, and timing, I know that we must do better than using liberty as a weapon to punish the most vulnerable. We must overcome our national addiction to caging people — at the border or through the War on Drugs or in any other context. If we remain fixated on imprisonment as our principal social policy tool, we erode not only our commitment to liberty but also degrade our humanity.
About the Author
Martín Sabelli represents individuals in state and federal courts in a wide range of civil and criminal matters from the simplest of cases and gang-related prosecutions to the most complex white collar investigations and death penalty prosecutions. He is a speaker at seminars and trial training programs for NACDL, the National Criminal Defense College, and other defense programs around the world.
Martín A. Sabelli (NACDL Life Member)
Law Offices of Martín A. Sabelli
San Francisco, California
415-298-8435
msabelli@sabellilaw.com
http://sabellilaw.com
