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District of Arizona Chief Judge John Roll, however, defends the way Streamline cases are handled in the state. "If I thought that due process suffered," he insists, "I certainly would oppose it. But I don't think that is the situation." He points out that defendants in Streamline have waived their rights to an individualized hearing and to a trial. "Most of the individuals prefer [Streamline]," he says, "because it means they're going to have their cases resolved speedily."
Therein lies the rub, insist Streamline opponents. Due process requires that defendants knowingly and willingly waive their rights. But with Streamline, defendants have little choice. Demanding a trial would mean a month or more in custody awaiting a trial date, far more time than a day or two many receive for time served. It's no wonder, then, that 99 percent of all Streamline defendants plead guilty. Individualized plea hearings or actual trials are rarities.
Roll's rationale for the program doesn't impress Professor Murphy.
"It strikes me as sad," she says, "that the defense of a system that cannot afford to give every person the justice they're entitled is that, 'Well, at least this is faster.'"
Actually, the Border Patrol would like to double or triple the number of Streamline defendants—this, even in the face of federal public defenders who express doubts that Streamline clients get the representation they need.
PD Juan Rocha has worked in both the Yuma and the Tucson courthouses on Streamline cases, and he says that, particularly in Tucson's factory-like churn, he feels helpless to assist Streamline defendants. "In Tucson, you're basically shepherding people to prison or to deportation proceedings," he says. "Because you're not really doing much for them."
Assistant Supervisory Federal Public Defender William Fry in Del Rio, explains that because his lawyers get to interview their clients only the day before they go before the judge, there's little time to research the prosecution's charges or to suss out possible citizenship claims. "We have to take at face value what the government says it's got on this guy when we make our decisions," he says. "And we only have a day to do it in."
Tucson and Yuma defense attorneys have even less time, meeting Streamline clients the morning of their hearings. In Tucson, lawyers can consult with their clients one-on-one. In Yuma, where one federal public defender takes the load for the day, an attorney is forced to address defendants in groups of six or more.
Rocha says he knows of several cases in Yuma in which the Border Patrol had, at one point, U.S. citizens in custody, ready to be presented to the judge.
Once someone is identified as a citizen, the charges can be dismissed. But determining citizenship can be complex. In fact, defendants may not be aware they have a citizenship claim. Also lawyers may not have enough time to discern that their client is actually a juvenile or incompetent to stand trial. Cases where clients speak indigenous languages such as Mixtec or Olmec, rather than Spanish or English, are supposed to be dismissed by the prosecutor, according to an understanding between U.S. Attorneys and defense counsel in Streamline.
Heather Williams, a supervisor in the Tucson Federal Public Defender's Office and one of Streamline's most outspoken critics, says that because of the language gap, her office sometimes learns afterward that a client had no idea what was going on during a Streamline hearing.
Williams decries what she sees as the inhumanity of Streamline's conveyor-belt approach to justice. "They are truly being treated like cattle sometimes," she says.
The U.S. Marshals Service counters that all defendants in the Tucson court, Streamline and non-Streamline, are restrained, citing crowding issues for the court, which operates at capacity. Yet the sight of 70 Latinos—whose main crime is wanting to come to this country to work—shuffling about in restraints befitting serial killers leaves a lasting impression.
Williams recalls more disturbing scenes: Steamline cases in which defendants had been in rollover accidents before they were apprehended. Some were paralyzed, but arrangements were made for them to have their initial appearances while in their hospital beds, she says. "We've actually had instances where Border Patrol has shot somebody and the person has been brought into court a day or so later, fresh from the hospital, having had surgery and having been totally out of it."
There are also concerns about clients having TB, MRSA, bacterial meningitis, and H1N1. But because they are in custody for such short periods, they often cannot be isolated or diagnosed. Williams says her office sometimes learns that the courtroom may have been exposed to disease after the fact.
More worrisome for constitutional sticklers such as Murphy is that by condoning mass hearings such as Streamline, the criminal justice system is creating a dangerous precedent. "There's the canary-in-the-coal-mine scenario," Murphy says. "The line between immigrants and citizens is much more porous, especially when it comes to the criminal justice system, than most people would expect."
Beyond the constitutional and humanitarian concerns remains the question of Streamline's cost and inefficiency. The program itself does not have a budget. Instead, it pulls from the resources of various involved agencies—U.S. Attorneys, Marshals, and Federal Public Defenders offices, Border Patrol and the federal judiciary.