The Justice Department’s push for what Attorney General Jeff Sessions last week called the “Trump era” of tougher immigration enforcement will come up against an already strained federal court system.
Burdened in some places by the volume of immigration cases, the judiciary faces high levels of caseloads in the border districts, which could feel the brunt of the policy shift. And 127 positions remain vacant on federal benches around the country.
At the same time, the Justice Department reportedly plans to reinvigorate the war on drugs by prosecuting more drug and gun cases.
Nearly seven out of 10 defendants charged in federal courts in the 2016 fiscal year that ended Sept. 30 faced either immigration or drug charges, according to Justice Department statistics obtained by the Syracuse University-based Transactional Records Access Clearinghouse, which regularly tracks court trends.
Including misdemeanor cases handled by magistrate judges, defendants prosecuted for immigration-related offenses accounted for 52 percent of the 133,041 total federal court filings in 2016.
Sessions directed the Justice Department to consider certain crimes committed by immigrants as a priority for prosecution. The more rigid stance on immigration enforcement includes increased prosecutions of immigrants who try to sneak back into the U.S. after being deported, and of those noncitizens who commit fraud and identity theft. He also said that immigrants apprehended while trying to cross the border would be detained, ending a policy known as “catch and release.”
“For those that continue to seek improper and illegal entry into this country, be forewarned: This is a new era. This is the Trump era,” Sessions said April 11, according to his prepared remarks to federal law enforcement officers as he toured the Arizona border. “The lawlessness, the abdication of the duty to enforce our immigration laws and the catch and release practices of old are over.”
But the Trump administration’s efforts to crack down on illegal immigration will occur while the system has the highest level of federal judge vacancies in years. Some districts are so short-handed, they face what the Administrative Office of the U.S. Courts calls “judicial emergencies.”
The vacancy situation is acute in the five border districts where 81 percent of immigration-related prosecutions occurred in 2016. Six out of the seven vacant benches in Arizona and Texas are considered emergency vacancies. Two of those are in south Texas, and have been vacant for more than 1,000 days each. The south Texas district leads the country in immigration-related convictions, according to the Transactional Records Access Clearinghouse.
Confirming federal judges is easier with the so-called nuclear option, which the Republican-led Senate used this month to confirm U.S. Supreme Court Justice Neil Gorsuch. Now, a simple majority of 51 votes in the Senate rather than 60 are needed to confirm judges.
But President Donald Trump still must nominate a significant number to the bench. Of the 127 vacant bench seats nationwide, 49 are deemed emergency vacancies. Of the 677 authorized judges at the district court level, where the vast majority of federal court cases are heard, 99 are unfilled. Senators are compiling lists of potential nominees, but there was only one pending nomination as of Thursday, according to the Administrative Office of U.S. Courts.
David Sellers, a spokesman for the courts, said it’s difficult to assess what impact the Justice Department’s new stance will have on caseloads.
“Any change in policy that results in a significant increase in federal prosecutions will impact judges, probation officers, federal defenders and other court-appointed lawyers and depending on the nature of the work – court interpreters, court security and more,” he said.
Aside from keeping prosecutors from focusing on white-collar crimes, drug-trafficking conspiracies and other offenses, the heightened focus on illegal entry prosecutions could further clog court caseloads, said Kevin Johnson, dean of the UC Davis School of Law. He said that’s especially true along the southwest border, where priorities are already skewed toward immigration, he said.
“It seems to me that Attorney General Sessions is simply trying to increase the numbers of criminal immigration prosecutions so that the administration can say that it is tough on enforcement and numbers are up,” Johnson said. “A lot of this is a political show – who can be the toughest on immigration enforcement.”
While border apprehensions continue to drop under the Trump administration, according to U.S. Customs and Border Protection, immigration arrests have risen. Immigration prosecutions typically are completed faster than other types of cases heard in U.S. District Courts.
A judicial panel that sets policy for the federal courts for years has asked Congress to fund more judges, to little avail. The Judicial Conference in March recommended adding 11 authorized judgeships in the border districts. The panel suggested expanding the nationwide number of district court judges by 52 to meet current caseload demands. The request is actually lower than previous years.
The Justice Department, meanwhile, continues to take steps to add more judges to the nation’s 58 immigration courts to address a record-high backlog, which had reached 555,001 pending cases at the end of February.
The Justice Department’s Executive Office for Immigration Review, which oversees the courts where asylum and deportation hearings take place, swore in 14 new judges this month, bringing the number on the bench to 319, the highest amount ever, according to a spokeswoman. All of those new judges were appointed by former Attorney General Loretta Lynch under the Obama administration.
In his public comments that accompanied the release of the immigration priorities memo, Sessions also announced that judicial hiring would be streamlined to hasten the expanding ranks of immigration judges by 125 over the next two years.
But the hiring of 50 additional judges this year was part of an Obama administration plan to get to the 374 authorized immigration judges positions. Dana Leigh Marks, president of an association that represents immigration judges nationwide, said her group has long advocated to have more than 450 judges and greater judicial independence.
“In order to assure that the public has faith that the immigration courts are not being influenced by political motives, it’s essential they can show their neutrality,” she said. “The atmosphere of doubt hampers the courts’ ability to function effectively and efficiently.”