Without Federal Funds, Border Counties Struggle to Prosecute Minor Drug Cases

As of June, the sign proclaimed,U.S. agents had seized 127,044 pounds of drugs and apprehended 16,785 immigrants without authorization to enter the country.

 

What the Department of Homeland Security sign doesn’t reveal is that first-time offenders caught with 200 pounds or less of marijuana had a good chance of driving away with a lightened load, a fingerprint record and a slap on the wrist, law enforcement officials say.

 

With bigger targets in mind, the U.S. attorney’s office in southern Texashasn’t paid much attention to small-time smugglers caught in this major drug-trafficking corridor through the Rio Grande Valley, local officials said.

 

And in Brooks County, where the checkpoint sits almost 70 miles north of the border, the local government can no longer afford the costs associated with prosecuting them. Instead, the Border Patrol is “catching, tagging and releasing” them, the local district attorney said.

 

“It’s not that we’re not willing. We’re just not able,” said Carlos O. Garcia, who took office in January. “We just don’t have the resources.”

 

Border authorities from South Texas to Southern Californiaface a similar dilemma now that the U.S. Justice Department has largely done away with paying state and local prosecutors to take on relatively minor federal drug busts, citing budget constraints.

 

The funding cuts portend a quiet but conspicuous shift in the nation’s approach to its battle against drugs.

 

With illegal immigration plummeting to historic lows in recent years, the Border Patrol has shifted its attention increasingly to drug interdiction and in the process has seized more drugs than ever. Agents also have ensnared thousands of Americans with small amounts of drugs – below drug trafficking thresholds, according to an analysis of data obtained by The Center for Investigative Reporting.

 

Many of those busts come from Border Patrol checkpoints, which accounted for 14 percent of the agency’s total seizure weight – about 313,000 pounds – in 2012. Federal prosecutors can’t handle them all, even if they wanted to.

 

To be sure, Border Patrol checkpoints have made some big seizures. In 2011, agents at an Imperial County, Calif., checkpoint near the Salton Sea found 14 tons of marijuana hidden among 20 crates in a truck destined for Los Angeles. 

 

As the U.S. Justice Department concentrates on prosecuting cartel kingpins, local prosecutors in Texas and New Mexico now anticipate filing lesser charges and asking for lighter sentences for some offenders caught by federal agents.

 

Carol Poole, a former Justice Department official who oversaw the management of grantsuntil 2010, said the federal government has left it tolocal governments to decide on – andfund – the prosecution of lower-level drug smugglers.

 

“Everyone is evaluating this war on drugs,” Poole said. “Change is difficult. Sometimes the locals are going to take the brunt of some of that change, but it may help them realign their priorities as well.”

 

The dwindling money comes from the troubled Southwest Border Prosecution Initiative, which has been all but eliminated under the Obama administration. Congress created the program to pay for local prosecution expenses and the costs associated with detaining involved suspects. Since 2002, it’s reimbursed roughly $300 million to authorities in the four states that border Mexico.

 

Although the Justice Department didn’t request any funds for this year or next, Congress set aside $4.6 million to finance the program in 2013, down from $31million in 2010.

 

Last year, California received more money in reimbursements – $5.2 million – than what Congress appropriated for the entire country in 2013. More than half of the state’s 2012 reimbursements went to San Diego, which generally has taken more declined federal cases – and received more reimbursements – than anywhere else in the country. San Diego has received more than $12.6 million in a single year.

 

In California’s Imperial County, authorities increasingly have taken more federal cases since 2008. District Attorney Gilbert Otero said his conscience won't let him stop accepting cases, though he’d like to see the federal government pay more to do the Justice Department’s job.

 

“I would really have to have a bad day to not prosecute someone in my county because the feds decided they didn’t want to,” he said. “You don’t want people committing crimes in your county and thinking they can get away with it.”

 

The San Diego County district attorney’s office, which has a $154 million budget this year, takes cases from a variety of federal agencies. The bulk comes from Customs and Border Protection, particularly from the major San Ysidro and Otay Mesa border crossings, according to the office.

 

Regarding cuts to the program, District Attorney Bonnie Dumanis said she’s seen it before. “It’s the same refrain: ‘We don’t have the money, so we have to cut money,’ ” she said in an interview.

 

Last month, border counties received more bad news from the Justice Department: The federal government would reimburse local authorities only for prosecution costs, but not for detention.

 

Justice Department spokesman Wyn Hornbuckle said in a statement that the administration had requested more than $1.7 billion for fiscal year 2014 to battle Mexican organized crime and pay for law enforcement efforts along the border.

 

“Due to the current funding constraints, the department has had to make difficult choices regarding funding for other programs, like the Southwest Border Prosecution Initiative, which has to be assessed in accordance with the department’s overall southwest border law enforcement priorities,” he wrote. 

 

The reimbursement program began after protests from prosecutors along the border, led by Jaime Esparza in El Paso, Texas, who hadrefused to accept federal cases the Justice Department sent hisway without amplefinancial support.

 

“Some of the poorest counties in the country are shouldering the federal government’s efforts against drug trafficking,” Esparza said. “If they don’t want to pay us, we’re not going to do that work. And it’s getting to that point now.”

 

But the border prosecution initiativehas had its problems. When the Obama administration took office, Justice Department officials found a poorly run program that lacked hard evidence that it worked as an enforcement tool, Poole said.

 

In one audit after another, the Justice Department’s inspector general found local prosecutors and sheriffs had maintained poor records, which often resulted in the counties receiving millions of dollars for ineligible claims. Some counties owed the federal government, including Brooks County, which decided to stop taking cases.

 

Laurie Robinson, a former assistant attorney general who oversaw the Justice Department’s grant funding during President Barack Obama’s first term, said she had serious concerns about the program when she came aboard, spurred by the inspector general’s reports. She thought the money would be better spent elsewhere.

 

“I tried to get it out of the budget for several years and not in the president’s budget for the last two cycles,” she said. “Congress put it back in.”

 

Border officials like Donald Reay, a former federal agent and current executive director of the Texas Border Sheriff’s Coalition, said local and federal law enforcement need each other’s support, be it manpower or money. He pointed to Yuma, Ariz., as a prime example of where that partnership works.

 

The Border Patrol sector there has busted more people with drugs than any other sector in the country. The numbers spiked after the local sheriff, Border Patrol sector chief and county attorney agreed to designate agents as peace officers at the local checkpoints, allowing dog handlers to write citations that Yuma County would process.

 

“What’s right is right, what’s wrong is wrong,” said former Yuma County Sheriff Ralph Ogden. “Everybody’s butt fit in my jail cells.”

 

Since then, Arizona voters passed a medical marijuana law that went into effect in 2011. Deputized Border Patrol agents there now must recognize states that permit small amounts of marijuana and issue cannabis cards, said Jon Smith, the Yuma County attorney.  But those agents still confiscate the marijuana under federal law and can write tickets if the amount exceeds Arizona’s legal limit, said Capt. Eben Bratcher of the Yuma County Sheriff's Office. 

 

Even then, not every county has the option Yuma does.In Texas, for instance, state law doesn’t allow Border Patrol agents to be designated as peace officers. Officials elsewhere worry that by not prosecuting cases, their counties will becomesmuggling havens andattract more crime. Garcia, the Brooks County prosecutor, said he sees evidence that suggests an increase in gang-related crime is linked to the border, including a recent homicide.

 

John Hubert, the district attorney for neighboring counties including Kenedy, which has the Border Patrol’s Sarita checkpoint about 20miles east of Falfurrias as the crow flies, said he argues with his county commissioners about accepting checkpoint cases. He said he can’t live with what he sees as the alternative – surrendering to criminals.

 

“Prosecution is not supposed to be a money-making business, but our poor counties can’t subsidize the federal government. We are prosecuting out of desperation,” Hubert said. “But it’s killing us. It’s slowly bleeding us dry.”

 

The fight over money undoubtedly has a ripple effect throughout the drug smuggling business, observers said. When U.S. attorneys set weight thresholds for drug prosecution, traffickers immediately start smuggling smaller loads, said David Shirk, a professor at the University of San Diego and an expert on drug trafficking.

 

“If the federal government is not going to really address the demand side, which they are not doing adequately, and only occasionally going after big producers,” he said, “the border is just a cat-and-mouse game that goes on infinitely.”