The U.S. border with Mexico extends nearly 2,000 miles along the southern borders of California, Arizona, New Mexico, and Texas. The Department of Homeland Security, U.S. Customs and Border Protection, is the federal agency with primary responsibility to detect and prevent illegal entry into the United States. In Fiscal Year (FY) 2006, U.S. Customs and Border Protection processed an average of 1.1 million passengers and pedestrians, and 70,900 truck, rail, and sea containers entering the United States each day. Additionally, on a typical day in FY 2006, U.S. Customs and Border Protection executed an average of 2,984 apprehensions for illegal entry into the United States, made 63 arrests at the ports of entry, and seized 5,557 pounds of narcotics.
While U.S. Customs and Border Protection has the responsibility of guarding the national borders, the Department of Justice (DOJ) also plays a vital role in protecting the United States through prosecution, detainment, and incarceration of those individuals who violate federal criminal laws. As a result, drug cases resulting from the illegal importation of controlled substances at U.S. borders were typically prosecuted exclusively by U.S. Attorneys in federal courts.
The Southwest Border Prosecution Initiative (SWBPI) provides funding to state, county, parish, tribal, and municipal governments for costs associated with the prosecution and pre-trial detention of these federally initiated criminal cases that are declined by the U.S. Attorneys offices and referred to state and local jurisdictions for prosecution. In late 1994, the U.S. Attorneys and state and local prosecutors began establishing partnerships through which the federal government referred to state and local governments criminal drug cases involving the illegal importation of controlled substances at the Southwest Border, known as federally declined‑referred criminal cases.19 These partnerships allowed the U.S. Attorneys to focus on addressing major drug trafficking organizations and prosecuting deported criminal aliens who illegally returned to the United States. However, as state and local governments began to prosecute a growing number of federally declined-referred criminal cases, these entities experienced an increasing burden on their financial and personnel resources.
In FYs 1998 and 1999, the counties along the Southwest Border, initiated by El Paso County, Texas, began notifying the U.S. Attorneys’ Offices (USAO) and the Executive Office for United States Attorneys (EOUSA) that they would no longer be able to prosecute federally declined‑referred criminal cases unless they received federal funds to help support these efforts. As a result, in FY 2001 Congress appropriated $24 million dollars “... to reimburse county and municipal governments only for Federal costs associated with the handling and processing of illegal immigration and drug and alien smuggling cases.”20 The reimbursement program was initially administered by the Executive Office for United States Attorneys (EOUSA).
Executive Office for United States Attorneys
EOUSA was created to provide a liaison between DOJ and the 93 U.S. Attorneys located throughout the 50 states, the District of Columbia, Guam, the Northern Marianas Islands, Puerto Rico, and the U.S. Virgin Islands.
EOUSA received $12 million in FY 2001 to reimburse county and municipal governments in California, Texas, Arizona, and New Mexico for handling and processing federally initiated drug cases along the Southwest Border. EOUSA provided each state with an equal share of funds to cover costs associated with court costs, administrative staff, courtroom technology, and the building of holding spaces. The original appropriation was supplemented, later in FY 2001, by an additional $10 million to Texas and $2 million to Arizona, and the legislation authorized reimbursements directly to the State of New Mexico.
In FY 2002, management of the SWBPI program was transferred to the Office of Justice Programs (OJP). Specifically, t he 2002 Departments of Commerce, Justice, State, the Judiciary, and Related Agencies Appropriations Act (FY 2002 Appropriations Act) authorized “$50,000,000 for the Southwest Border Prosecutor Initiative... to reimburse state, county, parish, tribal, or municipal governments only for federal costs associated with the prosecution of criminal cases declined by local U.S. Attorneys Offices.”21
According to its website, OJP provides federal leadership in developing the nation’s capacity to prevent and control crime, administer justice, and assist crime victims. OJP carries out this mission by forming partnerships with other federal, state, and local agencies, as well as national community based organizations. OJP programs seek to address crime, substance abuse, family violence, youth crime, crime victims, and law enforcement initiatives.
The Bureau of Justice Assistance (BJA), a component of OJP, administers the SWBPI program. Its stated mission is to provide leadership and assistance to local criminal justice strategies to make U.S. communities safer. To accomplish its mission, BJA provides funding, training, technical assistance, and information to state and community criminal justice programs and emphasizes the coordination of federal, state, and local efforts.
As of February 1, 2008, the SWBPI program provided reimbursements to 82 state, county, parish, tribal, and municipal governments for 41,567 cases totaling over $161 million. Total SWBPI reimbursements received by the four Southwest Border states are shown in Table 1, and a detailed listing of SWBPI reimbursements for each SWBPI recipient is shown in Appendix III.22
TABLE 1.
SWBPI REIMBURSEMENTS (DOLLARS IN MILLIONS)23
| STATES | FY02 | FY03 | FY04 | FY05 | FY06 | TOTALS |
|---|---|---|---|---|---|---|
| Arizona | $ 3.00 | $ 3.41 | $ 2.14 | $ 1.70 | $ 2.70 | $ 12.95 |
| California | 18.45 | 15.63 | 12.78 | 13.00 | 16.32 | 76.19 |
| New Mexico | 5.75 | 8.45 | 6.54 | 6.26 | 3.59 | 30.58 |
| Texas | 11.77 | 11.07 | 6.82 | 7.04 | 4.71 | 41.41 |
| SWBPI Totals | $38.97 | $38.55 | $28.28 | $28.00 | $27.33 | $161.13 |
Eligible SWBPI participants submit quarterly electronic applications for reimbursement through BJA’s SWBPI website. On the reimbursement applications, SWBPI applicants are required to list the total number of cases in each of three major categories based on the types of services provided: (1) prosecution only, (2) pre-trial detention only, and (3) both prosecution and pre-trial detention. The three major service categories are further broken down into four reimbursement categories based on the length of disposition: (1) 1 to 15 days, (2) 16 to 30 days, (3) 31 to 90 days, and (4) over 90 days.24
BJA does not require SWBPI applicants to provide documentation supporting the number of cases submitted for reimbursement through the electronic application. However, jurisdictions that receive SWBPI funds are required to retain documentation supporting the reimbursement requests for 3 years from the date the application was approved.
Each eligible case may receive the following maximum reimbursement, based upon length of disposition, availability of funds, and the provision of both prosecution services and pre-trial detention services.
TABLE 2.
MAXIMUM SWBPI REIMBURSEMENTS
| LENGTH OF DISPOSITION | MAXIMUM REIMBURSEMENT |
|---|---|
| 1 to 15 Days | $ 2,500 |
| 16 to 30 Days | 5,000 |
| 31 to 90 Days | 7,500 |
| Over 90 Days | 10,000 |
To calculate the reimbursement amount for cases submitted for both prosecution and pre-trial detention services, the length of the prosecution takes precedence in determining a case’s disposition category.
For prosecution only cases, each eligible case may receive 50 percent of the maximum reimbursement. To be eligible for 50 percent of the maximum per case reimbursement for prosecution only, an eligible jurisdiction must provide one or more of the following for each case: (1) judicial services, (2) prosecution services, or (3) defense services.
For pre-trial detention only cases, each eligible case may receive 50 percent of the maximum reimbursement. To be eligible for 50 percent of the maximum reimbursement for pre-trial detention only, an eligible jurisdiction must have held the case defendant overnight for 1 or more days in a secure facility. Pre-trial detention services do not include incarceration time for sentenced offenders.
According to SWBPI guidelines, SWBPI reimbursements received by state, county, parish, tribal, and municipal governments may be used for any lawful purpose that is in the best interest of the jurisdiction.
The first five SWBPI application periods (from October 1, 2001, to March 31, 2004) were reimbursed at 100 percent of the maximum amount requested. OJP did not make any reimbursements for the 4th quarter of FY 2004 because all of the SWBPI funds appropriated for the fiscal year had already been disbursed. As a result, beginning in FY 2005 BJA officials divided the funds across each quarter with each jurisdiction receiving an equal percentage of the amount determined available for each quarter.25
To be eligible for reimbursement under the SWBPI program, each case submitted must meet the following criteria.
The case must be federally initiated. A federally initiated case results from a criminal investigation or an arrest involving federal law enforcement authorities for a violation of federal criminal law. This may include investigations resulting from multi-jurisdictional task forces.
The case must be declined and referred. This occurs when a U.S. Attorney or federal law enforcement official decides not to pursue federal criminal charges against a defendant (declination) and requests that a state or local jurisdiction prosecute the defendant for violating state or local criminal statutes (referral). Referred cases are eligible for SWBPI reimbursement regardless of whether the case was formally declined and referred by a U.S. Attorney, or through a blanket declination‑referral policy, an “accepted federal law enforcement practice,” or by federal prosecutorial discretion.26
The case must be prosecuted by a state or local jurisdiction. If the state or local jurisdiction reviews the case but decides not to prosecute, then the case is not eligible for reimbursement.
The case must be disposed of during an eligible reporting period. The eligible reporting period is the quarter in which the case was disposed and case disposition refers to the time between a suspect’s arrest and the resolution (e.g., dismissal, plea, conviction, etc.) of the criminal charges through a county or state judicial or prosecutorial process. Disposition does not include incarceration time for sentenced offenders or time spent by prosecutors on judicial appeals.
Public Law 106-246 provided FY 2001 funding to state, county, parish, tribal, and municipal governments to reimburse them for costs associated with the prosecution and pre‑trial detention of federally initiated illegal immigration and drug and alien smuggling cases that were declined by the U.S. Attorneys offices and instead referred to state and local jurisdictions. However, none of the subsequent appropriations limit the types of federally initiated cases that are allowable for reimbursement. As a result, any federally initiated case that is declined by the U.S. Attorneys offices and subsequently prosecuted by an eligible state or local jurisdiction is allowable for reimbursement.
Additionally, the jurisdiction’s Chief Executive Officer (CEO) or designee must certify for quarterly SWBPI applications that the “application does not contain payment claims for cases already fully reimbursed by federal funds, or when combined with other federal reimbursement, grant, or payment funds, does not make payment claims in excess of 100 percent of the cost of prosecuting and or detaining case defendants in the reporting period.” The SWBPI guidelines also state that, at “submission, the CEO or designee certifies that the total application amount, when combined with other federal funds... does not exceed 100 percent of the jurisdiction’s annualized costs for prosecution and or pre-trial detention services.”
We found that there is a discrepancy between the certification on the SWBPI application and the certification requirement in the SWBPI guidelines. The application requires that federal funds cannot exceed 100 percent of the costs for the reporting period (i.e., the quarter) while the guidelines require that federal funds cannot exceed 100 percent of the annualized costs. Additionally, it is unclear whether or not prosecution and pre-trial detention costs should be considered separately or combined when determining if federal funds exceed costs. As a result, in conducting our audit we used the least restrictive interpretation of the guidelines and considered that federal funds cannot exceed the combined annualized prosecution and pre‑trial detention costs for SWBPI cases.
Our audit generally covered SWBPI reimbursements awarded from FYs 2002 through 2006. To assess the program, we used the SWBPI guidelines in effect during the period covered by our audit. However, it should be noted that in July 2007 OJP updated the SWBPI guidelines and made the following changes.
The new guidelines no longer state that recipients cannot receive reimbursements in excess of 100 percent of their actual annualized costs. Nonetheless, at the time SWBPI reimbursement applications are submitted the jurisdiction’s CEO or designee is still required to certify that “This application does not contain payment claims for cases already fully reimbursed by federal funds, or when combined with other federal reimbursement, grant, or payment funds, does not make payment claims in excess of 100 percent of the cost of prosecuting and or detaining case defendants in the reporting period.”
The July 2007 guidelines do not contain the statement that when a case is submitted under the “both” category, the prosecution timeline takes precedence in determining the case reimbursement category. However, the OJP application still allows for cases to be submitted under the “both” category rather than requiring that prosecution and pre-trial detention reimbursements be submitted separately.
The July 2007 guidelines specify that new cases resulting from probation or parole violations and revocation hearings resulting from a previously reimbursed SWBPI case are not eligible for reimbursement. Further, extradition cases are also not eligible for reimbursement. Although none of these types of cases would have been eligible for reimbursement under the previous guidelines the revised guidelines ensure that jurisdictions are aware of the fact that these types of cases are ineligible.
Additional Federal Prosecution and Detention Funding
We identified three major federal programs that provide funding to state and local jurisdictions for prosecution and detention services that may partially duplicate the objectives of the SWBPI program. These programs are the Office of National Drug Control Policy’s (ONDCP) High Intensity Drug Trafficking Area (HIDTA) Drug Prosecution Initiatives, OJP’s Edward Byrne Memorial Justice Assistance Grant Program (Byrne Grant Program), and the U.S. Department of Homeland Security, Bureau of Immigration and Customs Enforcement (DHS ICE) State Criminal Alien Assistance Program (SCAAP).
High Intensity Drug Trafficking Area Drug Prosecution Initiatives
HIDTA provides assistance to federal, state, and local law enforcement entities operating in areas most adversely affected by drug trafficking. In FY 2006, HIDTA funding totaled $224.7 million, of which $7 million was budgeted for locally designed strategies for prosecution. The HIDTA Prosecution Initiative is an optional initiative for local HIDTAs to provide state and local governments funding to cover salaries and some fringe benefits for prosecutors to work on HIDTA cases. The possibility for duplicate funding occurs when HIDTA drug cases prosecuted fully or in part by a HIDTA-funded prosecutor are submitted for SWBPI reimbursement.
Edward Byrne Memorial Justice Assistance Grant Program
The Byrne Grant Program is a partnership among federal, state, and local governments to create safer communities. BJA is authorized to award grants to states for use by states and units of local government to improve the functioning of the criminal justice system, with emphasis on violent crime and serious offenders. The Byrne Grant Program allows states, tribes, and local governments to support a broad range of activities to prevent and control crime based on their own local needs and conditions. The Byrne Grant Program affords agencies the flexibility to prioritize and place justice funds where they are needed most. The possibility for duplicate funding occurs when jurisdictions receive both SWBPI prosecution reimbursements and Byrne prosecution funds for the same case.
State Criminal Alien Assistance Program
BJA administers SCAAP in conjunction with the DHS ICE. SCAAP provides federal payments to states and localities that incurred correctional officer salary costs for incarcerated undocumented criminal aliens. To apply for SCAAP funding, the jurisdictions must submit inmate data files including identifiable information on the inmate, which is used to determine SCAAP eligibility for each inmate. The total inmate days and total correctional officer salary costs are utilized in determining the per diem cost used to calculate inmate reimbursements. SWBPI recipients are encouraged to apply for SCAAP funding with the knowledge that the total application amount, when combined with other federal funds provided to the jurisdiction for that reporting period, does not exceed 100 percent of the jurisdiction’s annualized costs for pre-trial detention services. The possibility for duplicate funding occurs when jurisdictions receive both SWBPI pre-trial detention reimbursements and SCAAP funding for the same incarcerated undocumented criminal alien.
Prior to the initiation of this audit, the OIG conducted three audits of individual SWBPI recipients to determine if SWBPI reimbursement requests submitted by the jurisdictions were allowable, supported, and in accordance with applicable laws, regulations, guidelines, and terms and conditions of the SWBPI program. The three audits examined the: (1) New Mexico Department of Public Safety (New Mexico DPS); (2) Yuma County Attorney’s Office, Arizona (Yuma County); and (3) Maricopa County Attorney’s Office, Arizona (Maricopa County).27 These SWBPI audits revealed dollar‑related findings totaling over $1.6 million. Specifically, the prior reviews identified the following.
The New Mexico DPS received reimbursements totaling $1,098,036 for ineligible cases. Additionally, the New Mexico DPS did not adequately monitor the state judicial districts’ requests for reimbursements to ensure the cases were allowable, supported, and in compliance with the SWBPI guidelines, and did not require the state judicial districts to sign assurances as to the accuracy of requests for reimbursement.
Yuma County received reimbursements totaling $84,191 for ineligible cases and $200,147 for unsupported cases. It also requested reimbursements totaling $17,500 for ineligible cases that had not yet been paid. Further, Yuma County did not maintain a list of cases supporting the reimbursements requested.
Maricopa County received reimbursements totaling $16,409 for ineligible cases and $176,948 for unsupported cases. It also requested reimbursements totaling $10,000 for unsupported cases that had not yet been paid. Additionally, Maricopa County failed to maintain a number of supporting case files for the required 3-year record retention period.
Additionally, for the past 8 years grant management has been identified by the Office of the Inspector General (OIG) as one of DOJ’s top 10 management and performance challenges. Specifically, the OIG has reported that grant management continues to be a challenge for the following reasons:
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OIG reviews continue to find that many grantees do not submit required financial and progress reports or do not submit them in a timely fashion;
Numerous deficiencies continue to be found in DOJ’s monitoring of grantee activities;
OIG audits found that grant funds were not regularly awarded in a timely manner and that grantees were slow to spend available monies; and
OIG audits of grants have resulted in significant dollar‑related findings.
Although SWBPI is a reimbursement program rather than a grant program, in our judgment the same concerns related to OJP’s management and oversight of the program exist.
Our audit of the SWBPI program sought to:
Evaluate OJP’s administration and management of SWBPI reimbursements;
Identify additional federal programs with overlapping objectives; and
Determine if SWBPI reimbursement requests submitted by eligible jurisdictions are allowable, supported, and in accordance with applicable laws, regulations, guidelines, and terms and conditions of the SWBPI program.
The audit generally covered, but is not limited to, SWBPI reimbursements awarded from FYs 2002 through 2006. Audit work was conducted at OJP; ONDCP; the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF); the Drug Enforcement Administration (DEA); the Federal Bureau of Investigation (FBI); EOUSA; and the following selected SWBPI recipients: (1) New Mexico DPS; (2) Yuma County; (3) Maricopa County; (4) El Paso County Auditor’s Office, Texas (El Paso County); (5) San Diego District Attorney’s Office, California (San Diego); (6) Brooks County, Texas (Brooks County); and (7) City and County of San Francisco, California (San Francisco). Additional information related to the audit objectives, scope, and methodology is contained in Appendix I.
Declined-referred is a term used in the SWBPI guidelines to refer to a point in time during a federal investigation when a U.S. Attorney or federal law enforcement official decides not to pursue federal criminal charges against a defendant (declination) and requests that a state or local jurisdiction prosecute the defendant for violating state or local criminal statutes (referral).
OJP has accepted applications for all the quarters of FY 2007, but as of January 31, 2008 had not yet made any reimbursements for FY 2007 SWBPI submissions. Therefore, FY 2006 was the most recent data available.
Throughout this report, differences in the total amounts are due to rounding.
Case disposition is the length of time between a suspect’s arrest and the resolution (e.g., dismissal, plea, conviction) of the criminal charges through a county or state judicial process.
For the 3rd quarter of FY 2004, San Diego, California, and Brooks County, Texas, received 100-percent reimbursement while the remaining five sites included in our audit received 81 percent reimbursement. For the quarters ended December 31, 2004, March 31, 2005, June 30, 2005, September 30, 2005, December 31, 2005, March 31, 2006, June 30, 2006, and September 30, 2006, SWBPI recipients received pro-rata reimbursements of 49.29 percent, 44.08 percent, 47.40 percent, 50.16 percent 53.18 percent, 47.61 percent, 43.09 percent, and 44.05 percent, respectively.
An accepted federal law enforcement practice is an understanding between the federal law enforcement agencies and the USAO. Declination‑referrals through an accepted federal law enforcement practice result from the fact that through communication federal law enforcement agencies obtain an understanding of which cases the USAO will or will not prosecute. Through this understanding, those cases that federal law enforcement agencies know the USAO will not prosecute are referred directly to the state or local jurisdiction without obtaining a declination from the USAO.
Our audit of the New Mexico DPS included the 2nd, 3rd, and 11th Judicial Districts.