http://www.jsonline.com/news/state/aug05/351518.asp

Millions spent to jail the deported
Immigrants who re-enter U.S. illegally face harsh sentences
By GINA BARTON
gbarton@journalsentinel.com
Posted: Aug. 27, 2005
A man who has been deported sneaks back into the country to rejoin his family, get a better job or run a drug operation. The minute he re-enters the United States, he's committed a federal felony.

If he's caught near the Mexican border, he could plea bargain down to a two-year prison term, or even avoid incarceration altogether.

If he's caught in Wisconsin, he could easily be sentenced to five years.

Nationwide and in the Eastern District of Wisconsin, the number of people charged with the federal crime known as "illegal re-entry after deportation" has increased exponentially since 2001. For the 12-month period ending Sept. 30 of that year, there were just two people charged with the crime in Wisconsin's Eastern District, which includes Milwaukee. For the same period last year, 35 people were charged here, an increase of more than 1600%.

Many offenders are not caught until they end up in state prisons, convicted of some other crime. Although the crackdown is a direct result of the September 2001 terrorist attacks, the overwhelming majority of those prosecuted are Mexican nationals with no ties to terrorist organizations or countries.

Proponents say sending offenders to federal prison before forcing them out of the country again makes them think twice about coming back once they're released. It is also a way to make sure foreign criminals are accounted for, they say. Someone in prison is no longer committing crimes here, the logic goes, whereas a criminal immediately deported could sneak back into the U.S. and quickly resume his illegal activities.

Critics question the effectiveness of the approach, since recidivism rates are impossible to track. They point out that many illegal re-entrants who get long sentences because of past criminal records aren't dangerous. Perhaps, critics say, tighter controls over U.S. borders would be a better use of millions of taxpayer dollars than incarceration.

Some Wisconsin-based federal judges have criticized the process in their rulings. It isn't right for Wisconsin defendants to be sentenced more harshly than illegal immigrants discovered in states bordering Mexico, simply because the sheer number of cases there would overwhelm the courts otherwise, the judges say. The "fast-track" plea bargains used in border states minimize deterrence just where it's needed most, they say.

"I do believe if this court is going to be fair and reasonable, I cannot overlook this disparity," U.S. District Judge J.P. Stadtmueller said during a recent sentencing hearing in Milwaukee. "In other words, if it's good for Arizona, California, New Mexico, Texas and the state of Washington . . . it ought to be applied uniformly across the land."

Mexican future
Edgar Soto-Montero is serving a prison term of more than six years for illegal re-entry. Soto-Montero was born in Mexico City in 1976. Two years later, his parents moved to the Chicago area. Soto-Montero was granted permanent resident alien status in 1990, but that status was revoked in 1998 after he was convicted of possession of cocaine for delivery, possession of marijuana and illegal possession of a gun. Soto-Montero admits he was a member of the Latin Kings, which led to many of his problems. He said that while he was serving time for those crimes, he got himself out of the gang.

"I was like, man, I can't do this. This can't be my life," he said earlier this month from a federal prison in Lexington, Ky.

After serving time in an Illinois prison on the gun and drug charges, Soto-Montero says he and some other illegal immigrants were taken by bus and plane to the Mexican border at Nuevo Laredo and told to walk across.

"I went to Mexico City and planned my return, basically," said Soto-Montero, a father of six.

Soto-Montero's plans were complicated by the fact that he didn't speak much Spanish and he kept getting robbed. Eventually, he obtained a fake birth certificate and convinced border guards he was an American student.

In 2000, Soto-Montero was arrested in Kenosha on suspicion of criminal damage to the property of his girlfriend. While out on bail, he was arrested on suspicion of assaulting his youngest child's mother, according to court records. In the end, he was convicted of battery, bail jumping and criminal trespass and sentenced to three years in a Wisconsin state prison.

A few weeks before he became eligible for parole in 2002, Soto-Montero was informed of the newly issued illegal re-entry charge. For people without criminal records, the charge carries a two-year maximum prison term. But the punishment increases to 10 or even 20 years depending on a defendant's criminal record. Soto-Montero fell into the 20-year maximum category.

"I'm not going to lie to you. I cried," he said.

While in prison, Soto-Montero has completed courses to become a chef and is working on certification as a fitness trainer. This time, instead of planning how he'll get back to the U.S., he's planning for a new life in Mexico. He hopes to find work, perhaps at a resort that caters to American tourists.

"Being sent to prison is basically what convinced me not to come back. It's just not worth it to me," he said.

Soto-Montero is set to be released from prison and deported in the fall of 2007. His federal prison stay will have cost taxpayers more than $100,000.

By a conservative estimate, U.S. taxpayers are spending some $200 million a year to keep illegal re-entrants in prison, according to a Journal Sentinel analysis. That calculation is based on the cost of incarcerating people whose most serious charge is illegal re-entry. Some also may have been convicted of lesser crimes.

Robert J. McWhirter, an assistant federal defender in Arizona and author of a book on immigration law, questions whether it's worth it.

"The penalty structure is far too expensive of a way to get the amount of deterrence you get," he said. "You get all the deterrence you're going to get with two years in prison."

The increasing numbers of prosecutions hasn't stopped the tide of people swarming across the border from Mexico, he said. And certain people are going to keep coming back no matter what you do, he said. Family, economic opportunity and even a lucrative criminal enterprise can be strong motivators for returning to the United States, despite the risks.

Chicago lawyer James Shapiro, a former federal prosecutor, said the deterrent effect of illegal re-entry charges is minimal, at best.

"What's the point of incapacitating them, giving them three hots and a cot, which may be more luxurious accommodations than the hovel they crawled out of in Mexico?" he asked. "It seems to me a better solution would be making our borders less porous."

U.S. Attorney Steven M. Biskupic said he and his counterparts across the country were handed a federal mandate to increase immigration prosecutions after the terrorist attacks of Sept. 11, 2001.

A recent analysis by the Transactional Records Access Clearinghouse, based at Syracuse University in New York, shows that the prosecutors did as they were told. In 2003, U.S. attorneys across the country charged 21,000 immigration cases. In 2004, that number had risen to about 38,000. Of the 2004 cases, just seven were linked to international terrorism, the study says.

Federal prosecutors weren't asked to distinguish between Mexicans and those who shared the Middle Eastern heritage of the Sept. 11 hijackers, Biskupic said. Rather, they were told to draw the line between illegal immigrants with criminal records and those simply trying to raise a family and make a living.

"There was a recognition that the system as a whole needed to be tightened on all levels, not just those dealing with how the 9-11 terrorists entered the country," Biskupic said. ". . . We try to focus on the people that have given the indication that they are the most dangerous, those who have shown themselves to be a risk for repeat drug dealing or violent crime."

As a general rule, Biskupic's office doesn't prosecute people for illegal re-entry unless they qualify for the 20-year prison term, he said.

No crimes since return
About half those prosecuted for illegal re-entry in Wisconsin's Eastern District are found in the state's prisons. In fiscal year 2004, the state Department of Corrections made about 250 referrals to the federal Immigration and Customs Enforcement branch of the Department of Homeland Security, said John Dipko, DOC spokesman. If the federal branch determines that a prisoner has been previously deported, and if the prisoner has a criminal record authorities deem serious, the case is referred to the U.S. attorney's office, Biskupic said.

Neither Chicago-based Immigrations and Customs Enforcement spokeswoman Gail Montenegro nor Biskupic could say how many referrals are made or how many potential cases prosecutors decline. Biskupic did say that about half of the illegal re-entry defendants in the district originate in the state prisons and about half come to prosecutors' attention some other way.

For example, Jose Manuel Galvez-Barrios was working as a truck driver when his truck broke down in a snowstorm in January 2004. Washington County sheriff's deputies who stopped to help realized he had been deported twice before and arrested him. The sole entry on Galvez-Barrios' criminal record was a conviction for aggravated assault with a firearm in 1993. He shot a man while attempting to get back some property a group of gang members had stolen from him, according to court records.

Federal sentencing guidelines recommended that Galvez-Barrios serve 41 to 51 months for illegal re-entry. Instead, U.S. District Judge Lynn Adelman sentenced him to two years.

"The seriousness of the defendant's offense was mitigated by the fact that he re-entered to support his family and did not break the law after he arrived. . . . The defendant is not dangerous and therefore, lengthy incarceration is not necessary to protect the public," Adelman wrote in the sentencing memorandum.

Stadtmueller sentenced one illegal re-entry defendant to just nine months.

According to his sentencing memos and statements in court, U.S. District Judge William C. Griesbach seems to agree with Adelman and Stadtmueller. For the most part, the other judges in the Eastern District have been imposing sentences within the longer guideline ranges.

Biskupic said he plans to appeal some of the shortest sentences. While he doesn't agree sentences should be the same here as in border districts, he does believe that all the judges in this district should be on the same page. It stands to reason that the shorter the sentence, the less deterrence to a particular defendant, he said.

"It's a complex issue," Biskupic said. "I'm not discounting the view of the judges. I'm not discounting the view of those who question some of the cases. I am trying to use our limited resources on those who deserve to be prosecuted."


The Cost Of Deterrence

In 2000, 50% of immigration offenders had been charged with illegally re-entering the United States. The 2000 figure is the most recent available. Immigration prosecutions have dramatically increased since then, and illegal re-entry still constitutes about 50% of immigration prosecutions.
As of July 30, there were just more than 19,000 federal inmates whose most serious convictions were for immigration offenses, though some also may have been charged with lesser offenses. So, one could estimate that 9,500 inmates were in prison on July 30 for illegal re-entry. That number likely holds fairly constant throughout the year.
At an average incarceration cost of $23,000 per year for each of those 9,500 inmates, the approximate annual cost of imprisoning illegal re-entry defendants is $218.5 million.

Sources: U.S. Bureau of Justice Statistics, U.S. Bureau of Prisons
Varied Stays
Maximum penalties for illegal re-entry after deportation:
2 years: If the defendant has no criminal record.
10 years: If the defendant has three or more misdemeanors involving drugs or crimes against other people, or an ordinary felony conviction.
20 years: If the defendant's criminal record includes an aggravated felony. The statutory definition of aggravated felony has evolved over time and now includes not only violent crimes such as homicide but also gun offenses, child pornography crimes, and fraud or tax evasion in amounts over $200,000.

Source: Georgetown Immigration Law Journal article by James P. Fleissner and James A. Shapiro
Quotable
What’s the point of incapacitating them, giving them three hots and a cot, which may be more luxurious accommodations than the hovel they crawled out of in Mexico?

- James Shapiro,
former federal prosecutor