Brenda is an attractive 27-year old with pretty impressive job credentials. (I was asked not to use her last name so as not to compromise her job prospects.)
At her tidy San Diego apartment, Brenda showed me her Emergency Medical Technician certificate and tells me about the Medical Billing course she just finished.
“I want to be a surgeon,” she said. “I want to do brain surgery.”
A felony for alien smuggling could put a serious damper on those plans, and Brenda knows it. At least now she does.
But a few months back, when she agreed to drive into the U.S. from Mexico with a guy hidden in her backseat, she was only thinking she’d soon have a couple thousand bucks to pay that month’s rent for her and her five kids.
“And I really needed it,” she said. “And I thought it was going to be super easy and just, drive across, that’s all.”
But the border agent who checked her passport asked to look in the back of her car. She got caught and cuffed.
But instead of being put behind bars, she was offered this deal: Plead guilty, then commit to a yearlong, court-supervised program that — if you play by the rules — let’s you get on with life with a clean record.
“This program is designed to target individuals who are starting down the path of criminal activity,” said Barbara Major, one of five federal magistrate judges who handle cases under the smuggling diversion program.
“It does something other than just put people in prison,” Major said. “It gives them the opportunity to turn their lives around.”
The smuggling diversion program is unique in the federal justice system. Participants are required to follow an individually tailored plan that can include everything from drug rehab to English classes.
“We help them find work, we write resumes, mental health counseling,” said Nancee Schwartz, the defense lawyer who proposed the program and represents all of the participants.
Schwartz has rowdy, white-blond hair and a sign behind her desk that reads, “I’M NOT POLITE.”
This program is her baby. It's really more about social work than lawyering, she said.
“I reflect on the amount of diapers I've bought, shoes I've bought,” Schwartz said with a wistful smile.
The diversion program tries to address the reason an individual chose to break the law. Did they need the money to survive, like Brenda? Did they have a drug problem?
All of the participants have monthly court dates with a judge who evaluates their progress.
At a recent session of diversion court, the judge ordered a client to write a 300-word essay starting with “I want my life….”
Brenda said a judge ordered her to take her kids to the park once a week.
But it’s not all so fluffy. Judges also order GPS monitors strapped onto participants’ ankles, and arrest warrants for those who fail to show up for drug tests or court dates.
“You know you don't get to spend a year just sitting around waiting for the felony to disappear,” Schwartz said. “We expect you to make some changes, we expect you to put in the hard work.”
Schwartz and others involved with the program are quick to note that the men and women given the option to participate are at the lowest level of the smuggling business.
"They're taking big risks for small amounts,” she said. “And most of them are shocked when I show them how much the people are being charged to be brought north by comparison to what they're being paid. You know, they feel pretty exploited."
Even if you have no sympathy for criminals, the fact is, federal officials say, there just isn’t enough space in local jails and prisons, or enough resources to prosecute everyone who breaks federal law.
Brenda only recently started the program, and she said just having someone there to push her is a big help.
“Like I said, I’ve always been on my own,” she said, “and I’ve never really had that support, you know, or that backbone of, come on, you can do this.”
And there’s a big stick: failure could mean going to prison and a felony record.
“So I know that I gotta, how do you say that, shape up and fly right,” she said.
That's exactly what the program is intended to do. Because the alternative, incarceration, just isn’t very good at rehabilitating offenders. More than half of individuals who serve sentences in federal prison will go on to commit other crimes.
In comparison, of the 137 people who have graduated, just five have re-offended.
The U.S. Attorney’s Office in San Diego hopes to expand the program. Low-level drug smugglers could be the next ones offered a path away from prison.
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