State Prosecutors See "National Abdication" of Law Enforcement by Bush DOJ

by Dave Bennion

Published January 12, 2009 @ 08:00AM PT

Solomon Moore has an important story in the NY Times this morning about the federal law enforcement priorities of the Bush administration.

Federal prosecutions of immigration crimes nearly doubled in the last fiscal year, reaching more than 70,000 immigration cases in the 2008 fiscal year, according to federal data compiled by a Syracuse University research group. The emphasis, many federal judges and prosecutors say, has siphoned resources from other crimes, eroded morale among federal lawyers and overloaded the federal court system. Many of those other crimes, including gun trafficking, organized crime and the increasingly violent drug trade, are now routinely referred to state and county officials, who say they often lack the finances or authority to prosecute them effectively.

Bush administration officials say the government's focus on immigration crimes is an outgrowth of its counterterrorism strategy and vigorous pursuit of immigrants with criminal records.

What the government won't tell you is that the category "immigrants with criminal records" includes those who have shoplifted, sold counterfeit DVDs, or been caught smoking pot.  DHS relies on the press to transmit its numbers on "criminal aliens captured" without digging too deeply into the distinctions between, for instance, armed robbery and possession of prescription drugs in someone else's name.  That means it's in DHS's interests to go after the easier low-level cases to pump up the numbers of "criminal aliens."  (This article is one of those that digs a little deeper.)

Immigration prosecutions have steeply risen over the last five years, while white-collar prosecutions have fallen by 18 percent, weapons prosecutions have dropped by 19 percent, organized crime prosecutions are down by 20 percent and public corruption prosecutions have dropped by 14 percent, according to the Syracuse group's statistics. Drug prosecutions - the enforcement priority of the Reagan, first Bush and Clinton administrations - have declined by 20 percent since 2003.

"I have seen a national abdication by the Justice Department," said Attorney General Terry Goddard of Arizona.

But for DHS, and for many GOP voters to whom Bush's immigration policy was targeted, immigrant = criminal, so it all evens out.  Bernie Madoff and his $50 billion ponzi scheme slips by the SEC unnoticed, but 300 Guatemalan factoryworkers are shackled and jailed for 5 months before being deported.  Who posed a greater threat to the economy?  To the rule of law?  Weapons smugglers and major drug dealers get a free pass but Mexican farmworkers get orange jumpsuits, federal prosecutions, and a plane ride home.

United States attorneys on the Southwest border, who handle the bulk of immigration prosecutions, usually decline to prosecute drug suspects with 500 pounds of marijuana or less - about $500,000 to $800,000 worth. As a result of Washington's decision to forgo many of those cases, Mr. Goddard said, local agencies are handling many of them and becoming overwhelmed.

Unless one of those drug suspects is an immigrant with a nickel bag ... then you can bet he'll be a priority.

Mr. Goddard, the Arizona attorney general, said the impact of the Justice Department's focus on immigration crime extended beyond the drug war.

"Where they used to be big players in environmental law, antitrust law, and consumer fraud - now the states are the ones taking on these kinds of cases," Mr. Goddard said. "These used to be uniquely federal in nature because they are going after multistate institutions conducting cross-border schemes."

This comes as no surprise, given the Bush DOJ's distaste for enforcing environmental, antitrust, and consumer protection laws.  Diverting law enforcement resources from those areas is a win-win proposition for this administration.

This story demonstrates that upholding the rule of law is not always a simple, nuance-free matter, and that utilizing federal prosecution in innovative ways to criminalize immigrants while leaving more serious crimes untouched may not be the best use of government resources.

"Juking the stats" has negative consequences for DOJ attorneys, too.

Carol C. Lam, a former United States attorney for the Southern California District and now a deputy general counsel for Qualcomm, was ousted in 2007 after Justice Department officials said she did not prosecute enough illegal immigrants. Ms. Lam, who was involved in the corruption case of Randy Cunningham, a former California Republican congressman now serving federal prison time, said her philosophy led her to choose high-impact cases instead of cases that simply "drove the statistics."

"If two-thirds of a U.S. attorney's office is handling low-level narcotics and immigration crimes," she said, "young prosecutors may not have the opportunity to learn how to do a wiretap case, or learn how to deal with the grand jury, or how to use money laundering statutes or flip witnesses or deal with informants and undercover investigations."

"That's not good law enforcement," she said.

A senior federal prosecutor who has worked on a wide variety of cases along the border said that the focus on relatively simple immigration prosecutions was eroding morale at United States attorney offices.

"A lot of the guys I work with did nothing but the most complex cases - taking down multigenerational crime families, international crime, drug trafficking syndicates - you know, big fish," said the prosecutor, who did not want to be identified as criticizing the department he works for. "Now these folks are dealing with these improper entry and illegal reentry cases." He added, "It's demoralizing for them, and us."

If there's one bright spot in this mess, it's this:

Prosecutorial priorities are expected to change after President-elect Barack Obama takes office, said Mark Agrast, a senior fellow at the Center for American Progress, a liberal research and policy institute that is closely associated with the transition team. "There will be a reassessment of whether aggressive targeting of criminal aliens through the use of federal criminal statues is an effective use of scarce law enforcement resources," Mr. Agrast said.

Get ready for a great wailing and gnashing of teeth from restrictionists as the Obama administration prepares to channel law enforcement resources towards organized crime and drug syndicates.  And stop to think whose priorities you share--those who think every immigrant is a criminal deserving of unlimited law enforcement efforts, or those who would rather see the government go after real criminals.