A Legal Thought on Operation Streamline and the Type of Attorney I Don't Want to Be

In 2005 the Department of Justice began treating undocumented immigrants captured crossing into the United States as felons. So desperate to keep them OUT, we decided to lock them IN our country; so eager to prove to voters that we wouldn't allow them to enter the United States illegally and become a drain on tax payers' money through "inevitably" ending up in the welfare system, we shoved them into federal prisons for months. Once JUSTICE was served, who cares about the tax money it takes to implement that so-called justice. Punishment is certainly more important to our society than acting in a fiscally rational way.

Operation Streamline

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 almost exclusively sent 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.

My Trial Experience: 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 individual sentenced alone. 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 men and women generally meet with their clients an hour or so before the trial. Counsel does no preparation (there's simply not enough time), and the attorney's one job is to explain the charges to their client. There is no negotiation; no opportunity to even do "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 female attorney I met with after the trial cried when discussing her role in Operation Streamline. She felt like a peon of a dehumanizing, cruel system that arrested undocumented immigrants in droves to then release them with the comfortable knowledge that they would try to re-enter. This knowledge was particularly comfortable for CCA, a private prison company paid millions of dollars every month by the government to facilitate needless imprisonment. 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 represents know that, or if they harbor hopes that her presence is 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 United States District Court for the district of Arizona ruled that the en masse questioning by the judge violated FRCP 11, the group trials still persist (see, for instance United States v. Escamilla-Rojas, 640 F.3d 1055). 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. There are some attorneys, like Hannan in United States v. Roblero-Solis, who are working within the system to effect procedural change. If I were to be a defender, however, I would only do so with a knowledge of who my client was, and only if I didn’t feel as though my presence was a mere farce. That may sound naïve, but maintaining a bit of naivete while going through law school, something that seems designed to crush all of my hopes and beliefs about my own personal abilities, could be beneficial, if only to my splintered confidence.

Where to Go Now?

SB 1070 is the ultimate recognition of objectifying people in the law. I believe that it 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 and confusing part is finding a way to combat programs and policies like Operation Streamline when all that I have ever known is working and learning in pre-existing, structured environments.

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