BORDER DAS JUST SAY NO

Citing cost and lack of respect, counties stop prosecuting U.S. drug cases

LAREDO A boycott by district attorneys for five Texas border counties of
federal referrals of low-level drug busts is about more than money, says
Webb County District Attorney Joe Rubio.

It's about respect.

Mr. Rubio should know. Nearly three years ago, after several years of asking
the U.S. Justice Department to help defray the $1 million annual costs of
prosecuting drug smugglers arrested by federal agents along the border, Mr.
Rubio just said no. He would no longer prosecute cases the that federal
government found too small for the U.S. courts.

Now, his colleagues along the border with Mexico, their added costs ranging
in the millions, are saying the same.

"I'm glad the other DAs made the decision. Everyone, both federal and state
officials, know what a financial burden these referrals are to the local
jurisdictions," Mr. Rubio said. "It's not just the money though. Now, they
see they can't take us for granted anymore. If we're to be partners in the
war on drugs, then they need to treat us as such."

On June 8, district attorneys serving Cameron, Hidalgo, Starr, Hudspeth and
El Paso counties declared a boycott on the federal referrals, saying they
would stop prosecuting the small drug cases beginning Saturday. The number
of criminal cases ranged from 130 in Cameron County to about 550 in El Paso
and Hudspeth counties.

According to an informal Justice Department study, total costs for the past
five years to the state prosecutors from Brownsville to San Diego, Calif.,
averaged about $96 million. In Texas, annual costs to border prosecutors
ranged from about $1 million to $5 million, according to El Paso County
District Attorney Jaime Esparza.

"The 500-plus federal referrals we receive each year constitute about 10
percent of our criminal case load. That will tie up one judge for half a
year," Mr. Esparza said. "That costs us $5 million in cost of trials, public
defenders, incarceration prior and during trial and other costs. It's not
something we can continue to absorb for free."

Both sides of the controversy, who are continuing negotiations to resolve
the dispute, acknowledge that the sheer volume of the joint state-federal
effort at combating drug smuggling along the border strains the limits of
the entire justice system, regardless of jurisdiction.

"I don't agree that it's totally a federal problem, but the district
attorney's have a point about the referrals," said Bill Blagg, U.S. attorney
for the Western District of Texas in San Antonio, which stretches from Del
Rio to El Paso along the Rio Grande. "It's a tremendous expense to the state
courts and DAs, particularly for counties along the border that are some of
the poorest in the nation.

"If their boycott is an effort to leverage Congress for more funds for more
federal judgeships, more courts, more prosecutors, I hope it works," Mr.
Blagg said.

Money to do the job

The boycott is also a way to get the federal government to face reality,
said Yolanda De Leon, district attorney in Cameron County.

"The federal government has made its presence along the border a major issue
in the war on drugs, with us as partners. For it to work, the federal
government must cover the costs for local prosecutors to do the job they've
imposed on us," Ms. De Leon said. "Congress must fund the Justice Department
and the courts to bring in more judges, more prosecutors, more probation
officers. If not, then maybe Congress has some explaining to do."

The "referrals" in question are the hundreds of drug cases, usually
low-grade marijuana smuggling cases, many involving less than 100 pounds,
made by federal agents at border checkpoints and ports of entry, routinely
passed on to state jurisdictions for prosecution.

In El Paso County last year, for example, the average case involved a
low-grade smuggler - known as a mule - caught driving across the
international bridge with 45 to 65 pounds of marijuana.

About 60 percent of the defendants are from Mexico. About 10 percent have a
prior criminal record.

"Depending on the case, we get a number who get some real prison time," said
Rene Railey, assistant to Mr. Esparza. "The average sentence, however, is
six to seven years probation. If they're from Mexico, they get immediately
deported after the sentencing. If they didn't have a felony record, they get
one."

Congress is aware of the problems confronting state and federal prosecutors
along the border. U.S. Sen. Kay Bailey Hutchison of Texas has argued for
increased funding for federal courts and prosecutors along the border.

Earlier this month, Gov. George W. Bush, the presumed Republican nominee for
president, vowed that if elected, he would provide $50 million a year to
reimburse border counties for their work.

It's unclear whether that would meet all the costs of a legal system whose
operations have grown geometrically amid a rising volume of marijuana,
cocaine and heroin across the border.

Border workload

In 1998, the 14,517 criminal cases filed in the five federal court districts
making up the "Border Courts" - the Southern District of California, the
Western and Southern districts of Texas and in Arizona and New Mexico - made
up 26 percent of all federal criminal filings in the United States. About 80
percent were drug cases.

Drug prosecutions in the "border courts" nearly doubled since 1994, while
immigration prosecutions increased more than fivefold, according to Justice
Department reports. As a result, the average caseload per federal judge in
the border courts is more than four times that of the national average.

Meanwhile, there has been a 155 percent increase in the number of Drug
Enforcement Administration agents assigned to the southwest border since
1995. The Border Patrol numbers have grown 97 percent, while the FBI's
border presence increased 37 percent in the same time period.

As a result, federal court dockets along the border have become jammed with
drug cases.

In four years since 1995, the Western District saw a 238 percent increase in
criminal filings. Last year, the district recorded 3,850 criminal filings -
about four times the felony case load of the U.S. Northern District of Texas
based in Dallas.

It was a distinction that earned gave the Western District the dubious honor
of having the busiest federal criminal docket in the nation.

As the Saturday boycott deadline draws closer, Mr. Blagg is keenly aware
that things will only get busier. He's already looking at how his office can
reallocate resources and juggle existing cases to make prosecutors available
to handle the increased case load.

"We're not just going to let drug smugglers go. We'll be making choices
which will be handled as felonies and which we'll plea down to misdemeanors.
But they'll all stay criminal cases," he said. "Even if we have to take
probation on some of these cases, that will still be a felony conviction."

The sheer volume of drug cases is creating a severe stress on the entire
criminal justice system, state and federal, along the border, Mr. Blagg
said.

"We already have assistant U.S. attorneys working case loads of 200 or
more," Mr. Blagg said. "Now, I've got to tell the federal judges already
working crowded dockets that we'll be sending them hundreds of more cases
each year. That's a pretty hard sell."

Growth elsewhere

Although not as active as the Western District, the Houston-based U.S.
Southern District of Texas, which prosecutes cases in Brownsville, McAllen
and Laredo, mirrors the growth of federal prosecutions along the border.

Last year, there were about 2,700 criminal cases filed in the Southern
District. As of April, there were 1,283 criminal cases filed, a 14 percent
increase over the same time the previous year.

"We can't overstate the financial burden referrals have meant to the border
counties," said Mr. Esparza, the El Paso district attorney. "The border
counties have been forced to pay the cost of administering justice in the
federal cases brought to our systems."

"They may be lower level cases, simply possession. But they still must be
prosecuted," Mr. Esparza said. "We have to lock them up before trial and
they go on our probation roles later. We can't continue to absorb 500 cases
a year. We can't do it for free."

Down river in McAllen, Hidalgo County District Attorney Rene Guerra sees the
increase in federal referrals without fair compensation eventually resulting
in diminished prosecutions standards.

"My big concern as the number of federal referrals increased, the standard
of prosecutions dropped," he said. "Increasingly, those referred to the
state are getting tried for lesser crimes with less jail time or getting
probation. That waters down the prosecution of drug dealers and their mules
all along the border. It's not a message we want to send."

In Laredo, Mr. Rubio, the Webb County district attorney, offers insight into
lessons learned from his refusal nearly three years earlier to accept
federal referrals.

"It wasn't something we took lightly. We had talked for two years with the
feds and nothing happened. We felt if we didn't act, we'd never get
anywhere," Mr. Rubio said. "My operating budget was about $1 million a year.
The cost on 700 referrals a year was about $1 million dollars. We just
couldn't afford to do it anymore."

Overnight, when Webb County stopped taking federal criminal cases, the
caseload for the federal courts in Laredo nearly doubled. "For us, it meant
we were able to free up prosecutors and personnel to open up our civil
department, as well as increase our prosecutions on domestic violence and
child abuse," Mr. Rubio said.

FBI investigation

His David-vs.-Goliath stance came with a cost, Mr. Rubio said. Seven months
later, FBI agents poured into district attorney's office at the Webb County
Courthouse, seizing more than 5,000 criminal case files as part of an
investigation into an alleged case-fixing scheme.

Mr. Rubio was named as the focus of a massive federal investigation into how
prosecutors in his office, along with judges, court officials and others
handled criminal cases dating back to January 1989, when Mr. Rubio first
took office.

Mr. Rubio has never been charged. Later indictments, however, named three
members of the district attorney's staff; his brother, Carlos, and their
father, a prominent political figure in Laredo, with conspiring to take
bribes to fix cases. Former District Judge Ruben Garcia and the brother
later pleaded guilty and are serving prison terms.

"If they think there's criminal activity, they should investigate. I have no
problem with that," Mr. Rubio said. "But I question the timing. The FBI
sensationalized the situation and made a big show of the investigation. That
part, I think, was an effort to embarrass me because of my stand on
referrals."

For Mr. Rubio, the attention the border prosecutors' boycott creates only
validates his decision.

"I was glad to see the other border prosecutors take this action," Mr. Rubio
said. "'For a long while, I really felt like Gary Cooper in High Noon . It
wasn't an easy decision but it was a necessary one.

"Now, the federal government realizes they can't take us for granted
anymore. I see this spreading all up and down the border, once the district
attorneys in other states look at the Texas experience."