“Me declaro culpable”
Daniel M. Brinks
The federal government’s mass trials of migrants don’t look like due process to observers.
There are fifty defendants in the courtroom. Maybe a half dozen women and the rest men, mostly young, barely into their twenties, all of them in chains. Watching them are a smattering of US Marshalls and Customs and Border Protection agents, and an equal number of private security contractors. Mingling with the defendants are four public defenders, who call people out to sit at counsel’s table, stand by the court reporter’s table or the witness stand, and talk briefly with each of the defendants, asking questions and taking notes. People in chains fill the seats along the wall, all the seats in the jury box, and the benches ordinarily reserved for spectators.
After about an hour of controlled chaos, the US Marshall carefully organizes the defendants. Slowly everyone is seated in order of the docket sheet, names are double checked, and silence settles on the assembly. We are in the Magistrate Judge’s courtroom, in the U.S. District Court for the Southern District of Texas, in Brownsville, on the border with Mexico. Soon the Magistrate Judge will begin the latest mass trial of migrants who are accused of crossing the border without permission, between formal ports of entry. Under our zero-tolerance policy, the government charges all migrants with criminal offenses before putting them into the process that will decide whether they stay in the country or are deported.
Ten of the men are charged with more serious offenses, like a felony re-entry or smuggling people or drugs across the border. These are lined up before the judge first, addressed individually, and sent off to detention to await trial. The other forty or so are all charged under 8 USC Section 1325, “illegal entry.”
What happens next has very much the flavor of a set piece in a musical. There is choreographed movement, a lead actor, individual lines alternating with mostly male voices occasionally ringing out in unison. All the actors have clearly memorized their lines but the delivery is mechanical; the choreography is simple but some of the actors still stumble through it.
“Everyone stand and raise your right hand. Do you swear to tell the truth?” The chorus responds, “Si.” “If you don’t speak Spanish, sit down now.” No one moves. “Can everyone understand Spanish?” Forty voices: “Si.” “If at any time you don’t understand me, do something to let me know.” Silence. “If you do understand me, sit down now.” Everyone sits. Four or five see everyone else sitting down, and hastily sit down as well. It is incongruous to hear, forty times in a row, in identical, precisely repeated language, “You have individual rights — to remain silent, to an attorney…” Then, “No one can take these rights away from you. But to plead guilty you will have to waive your individual rights. Has anyone tried to force you to waive your rights through threats or coercion?” Forty voices, in unison, maintain, “No.” “Do you still want to waive your rights?” Forty, again, “Si.” “If you want to give up your rights and plead guilty, sit down.” Again, a few people look around, as if to say, “What am I supposed to be doing here?” but ultimately everyone sits down.
Next is the guilt assembly line. The prosecutor reads each name, followed by the date and place of the arrest — she misplaces a couple of pages, is corrected by the judge — and at the end reads the legal charges for everyone at once. The judge goes through each of the defendants: “Do you understand the charges? How do you plead?” Each defendant stands, replies “Culpable” — guilty — and remains standing. Slowly the courtroom fills with standing people. At the end, quality control: the judge turns to all of them, and, earnestly and sincerely, asks them, “Have you pleaded guilty freely and voluntarily?” “Si.”
A few are sentenced individually, to ten or fifteen days in jail, or to probation. As to the rest, “If you want to say something before sentencing, stand up.” One wants to say, “I came here to make money to help my parents, but I can see that it was wrong, and I won’t do it again.” “Well, don’t come back illegally, because the consequences are going to be worse and you’re not going to be helping your parents that way.” Another says, “I left Honduras because I disagreed with the president, and now I’m afraid of the police.” To him, the judge says, not unkindly, “Tell that to the immigration judge, that’s not what we’re here for.” No one else wants to say anything.
Then comes the anticlimax: “I sentence you all to time served.” And a little lecture, “Don’t come back illegally. You won’t do your families any favors if you’re sitting in jail here.”
The show is over. Performances are every Monday, at 10:00 am; only the extras will change.
There is a deep irony in repeating, forty times, “you have individual rights that cannot be taken away,” then asking forty chained people for a mass response to the question, “Do you want to waive your rights?” Irony again, in asking these forty people, “Are you acting freely and voluntarily?” Again, in asking all the defendants, who have spent a few minutes in a crowded courtroom with some member of the public defender’s office, “Does this attorney represent you?” and taking seriously the answer. In about two and a half hours, fifty defendants met their attorneys for the first time, were convicted, sentenced, and filed out to serve their sentence or be sent off to immigration proceedings.
I have the greatest respect for the public defenders who do their best to represent the migrants. The judge struck me as a fair person, with a genuine concern for the process and a certain level of sympathy for the defendants. The prosecutor did not appear to be acting out of hostility. It seemed to me that all the lead actors were working from the assumption that, given what the laws and prosecutorial priorities are right now, the vast majority of the people brought before them are exactly where they are supposed to be, receiving exactly the legal treatment they’re supposed to receive.
I suspect they understand their job to be, quite simply, to pick out from this vast haystack of persons who are guilty as charged, those few — if any — needles who are not supposed to be there. Certainly, a lot of this work happens behind the scenes. By the time we saw them, the defendants were all sorted into lots, for convenient mass processing: section 1326 over here, section 1325(a)(1) over there, section 1325(a)(3) in a little group right here. I am certain that the judge and the attorneys believe they have properly done the sorting, and that the procedures ensured there were no needles in this particular haystack. The fact that the migrants were, individually, tired and dispirited, confused and apprehensive, fleeing violence or poverty, seeking to reunite with their children or support aging parents, would not affect the conclusion that they were, collectively, guilty.
If you grant the premises — thousands of people fleeing Central America, a zero-tolerance policy, limited detention facilities, judges, prosecutors and public defenders — then you might be open to the idea that this mass hearing was a reasonable way to identify the guilty.
But the problem lies with the basic assumptions that underpin the entire process. For me and the ten other courtroom observers with me, the wrongness was palpable. “This doesn’t look like anything we have seen before. This whole thing should not be happening. These fifty people should not be here. We should not be doing this. If we are going to do this, we have to find a better way. Is this really the best we can do?”
In fact, it is not hard to question each of the premises.
We could point out the many ways in which this country has long been implicated in creating the conditions that cause people and families to flee. We might say, for instance, that our demand for cheap labor and tolerance for undocumented workers has created a century-long pattern of migratory work from Central America. We might say, our insatiable demand for illegal drugs creates and sustains the flow of drugs in this direction and the flow of money and guns in the opposite direction. We might note that we supported violent governments in the 1980s that pushed thousands of Central Americans into the United States; then we often denied them legal status and basic economic opportunities, criminalized many of their young men and deported those young men back to Central America, where they contribute to the violence and poverty that pushes people back to our borders today. Full circle.
We might object that there is nothing necessary about criminalizing everyone who crosses our borders without permission, even those who are seeking asylum. We might suggest that, if we do decide to charge thousands of people with a crime, we have an obligation to supply enough resources to provide an individualized procedure that lives up to our own standards. We might even believe that we should not create a system in which waiving all your defenses and pleading guilty is the least burdensome option.
It is not hard to question the premises.
Mass justice is flattening, dehumanizing. But one of the defendants in that Brownsville courtroom stood up, when it came to his turn, and asserted his own moral agency. “Me declaro culpable,” he said. “I declare myself guilty.” Whether he meant to or not, he seemed to be denying our right to declare him guilty. In my self-conscious complicity in creating the premises for his very presence, it seemed to me that he was saying, “I am guilty. I am guilty of participating in this gruesome game of cat and mouse across your borders, of playing a bit part in a show trial.” And it seemed to me that the ten of us who were seated in the back row in that courtroom in Brownsville — ten white, middle aged, affluent Americans watching fifty brown people be charged, convicted and sentenced in under two hours — we could have echoed his words. “We declare ourselves guilty. Guilty of setting up this gruesome game, of playing a bit part in a show trial.”
Daniel Brinks is an Associate Professor of Government and Law at the University of Texas at Austin, and Co-Director of the Rapoport Center for Human Rights and Justice. He is a member of the board of the Texas Interfaith Center for Public Policy.