Jailed by the Thousands, Without Charges, to Act as Witnesses

Several months ago, as a federal judge worked through a docket of smuggling cases in the bustling border city of Laredo, Texas, three people were escorted into the courtroom.

Because they were undocumented immigrants, the judge explained, they would be sent to jail. But they were not being charged with a crime. Instead, they would be compelled to testify against the people accused of helping them enter the United States.

The hearing took less than five minutes. The immigrants never spoke, not to ask questions or explain why they had made the illegal journey across the Rio Grande. They were then taken to jail, where they joined a long list of people — nearly 104,000 since 2003 — detained as so-called material witnesses in federal criminal proceedings.

While the law allowing the detention of witnesses in criminal cases dates back to George Washington’s presidency, its modern use has been most prevalent along the Mexican border as successive administrations have prioritized the prosecution of human-smuggling cases, according to an analysis by The New York Times of U.S. Marshals Service data obtained through a public records request.

…

…as immigration-related crimes have come to dominate federal court dockets — 56 percent of federal convictions over the past five years involved immigration offenses — the Justice Department and federal courts have developed no uniform approach to handling the witnesses, creating a jumble of local rules, standing orders and unwritten norms along the border.

Over the past decade, border towns in southeastern Texas have held more of the witnesses — and held them longer, on average — than anywhere else in the country, the Marshals’ data shows. The material-witness law in that region — part of the federal Southern District of Texas — has been administered haphazardly, often with little regard for due process, a review of the detentions by The Times found.