The Dollar Dance
Texas counties have turned criminal prosecutions of migrants into a legally dubious money-making ruse
Showing up to court is essential. Without witnesses and parties, the court system would come to a halt. With it, the justice that lawyers and judges try to squeeze out of legal proceedings. Now Texas wants to profit from the legal obligation to appear for court dates. Counties across the state have kept millions of dollars paid by migrants facing criminal prosecution under Governor Greg Abbott’s immigration law-enforcement initiative when they don’t make it to court because federal officials won’t let them.
It’s a lucrative practice that Jack Herrera of The New York Times recently detailed. Sparsely populated Kinney County, alone, has kept $1.7 million, reported Herrera. “The forfeitures are the equivalent of what it would take to pay for the entire sheriff’s department for a year, or the county judge and county attorney’s office combined for over three years,” the Times analysis found.
Abbott’s foray into immigration policy, dubbed Operation Lone Star, is an $11 billion state-funded effort to make life difficult for migrants. Under Operation Lone Star, any migrant who enters Texas without the federal government’s permission can be arrested and charged with criminal trespass under state law. Unlike border regions in New Mexico, Arizona, and California, much of the land abutting the border in Texas is in private hands, so state officials have had to obtain cooperation from willing landowners. Kinney County hasn’t found that to be a problem. Local prosecutors there have gone after thousands of migrants, Herrera reports.
By tapping the state’s trespass offense, Abbott has turned immigration law violations, which are mostly civil infractions under federal law, into crimes. And the migrants who commit these crimes have gone from hard-working people looking to make a better life for themselves into unsympathetic criminal aliens.
Once arrested, migrants are sent to a county jail to await prosecution. The county prosecutor then files barebones allegations to launch the criminal trespass case. Entitled to release after paying bail, many migrants ask friends, relatives, or bail-bond professionals to put up the money that a judge demands.
At this point, the bail process under Operation Lone Star veers from the ordinary. Instead of release after paying the court-ordered bail amount, migrants are handed over to ICE, which promptly detains and deports them. Once outside the United States, they can’t return to the county courthouse for their next court date. DHS could allow migrants to attend their hearings by allowing them to enter the United States under the department’s existing parole authority, but that’s not what happens. The judge overseeing criminal prosecutions could allow migrants to appear by video-conference, but many don’t. As a result, migrants can’t attend their court dates because neither the federal government nor the county courts are willing to do what is in their power to facilitate participation in the legal process.
There are two direct consequences to the government’s intransigence. First, the criminal prosecution stops in its tracks. In the United States, defendants are constitutionally entitled to be present at their criminal prosecutions. Second, the county court must decide what to do about the bail money. Typically, bail is returned if a defendant complies with the court’s requirements or shows that they were unable to do so for reasons outside their control.
In places like Kinney County, local court officials have taken the position that being handed to ICE by county officials, then sent out of the United States by ICE and not allowed to return doesn’t mean showing up for court was out of a migrant’s hands, Herrera reports. A 2005 decision from a state appellate court, Allegheny Casualty Company v. State, supports that position.
But the law is far from certain, as I explained to Herrera. Even in Texas, a judge on a different intermediate appellate court recently wrote that people prosecuted under Operation Lone Star should be allowed to appear virtually for their hearings, as many have requested, under a pandemic-era decree from the Texas Supreme Court.
Plus, two years before Alleghany, the highest state court in Texas that handles criminal appeals, the Texas Court of Criminal Appeals, concluded that under some circumstances the amount paid in bond must be returned to the bail bonds company after a defendant is handed over to immigration officials. In Castaneda v. State, the Texas appellate court sided with the bail bonds company in four of the five bonds involved in the case. County officials were allowed to keep only one pot of bail money.
Operation Lone Star is unique to Texas, but migrants being prosecuted for crimes and deported aren’t. In 2005, a Colorado court found that county officials in suburban Denver tainted their own hands by implementing a similar practice. Writing about a Mexican citizen deported after being granted bail, a Colorado appellate court explained in People v. Escalera,
“He did not appear at trial because of the decision by the Jefferson County Sheriff's Office, an arm of the state, to transfer custody of him to the INS and defendant’s subsequent deportation. Under these circumstances, defendant’s failure to appear was not “willful” in the traditional sense as if he had fled the jurisdiction.”
Since the defendant failed to show up to court because of what the county sheriff’s department did, the bail money should not enrich the county, the court concluded.
As more Republican-led states adopt their own immigration policing policies, look for more instances in which criminal law runs head-long into immigration law. So long as the U.S. Constitution bars government from prosecuting people who can’t show up to defend themselves, courts will be asked to pick which matters most: the criminal legal system’s supposed quest for accountability or the immigration law regime’s unflinching desire to detain and deport.