THE BLOG

First and Foremost, Border-Children Crisis Is a Civil Courts Crisis

08/12/2014 09:18 pm ET | Updated Oct 12, 2014

When it comes to the border crisis involving unaccompanied minors seeking entry into the United States, there are plenty of epic failures to go around. You can blame Congress for failing to address immigration laws, you can blame enforcement policies at the border, you can blame the Obama administration for mishandling the system.

But with tens of thousands of children being held in detention centers bordering on prison camps, it is vital that the core of this problem is an underfunded civil courts system.

Immigration courts are their own system, and no doubt many U.S. citizens were surprised to learn that immigration is a civil, not a criminal, issue. Otherwise, how could the government get away with setting court dates years away, given our right to a "speedy trial" in criminal courts?

The San Jose Mercury News editorial got it right by saying "... the problem is too few immigration judges to deal with a backlog of more than 375,000 cases, including the flood of some 50,000 children."

The Mercury News blamed Republicans, who "... wanted to fund enforcement but not judges. There are 243 [immigration] judges nationwide. Los Angeles County alone has more than 400 judges on its Superior Court. Obama's request for $3.7 billion to deal with the crisis is a start..."

The problem is not the 2008 law ordering court hearings for minor children from non-bordering nations, which aimed to help stop human trafficking. The real problem is that nobody provided the judges and courts to handle that policy.

Now, instead of addressing that issue or changing the law, we see a made-for-cable-news Band-Aid being applied to the problem. Immigration courts from San Francisco to New Orleans are reporting that the high-profile children cases are being moved to the front of a years-long line. People who have been waited years for their day in court are being "rescheduled" to "don't call us, we'll call you."

The courts are not alone in experiencing unmitigated consequences. A recent report from the Transactional Records Access Clearinghouse at Syracuse University underscores the role of legal representation for the border children. Fox News reported "... that in cases where the child had an attorney, they were allowed to stay in the United States nearly half the time. Children who appeared in court alone or without any type of legal representation were deported nine out of 10 times, according to the study." As a society, we are supposed to learn from such failures.

In fact, the first lesson here is that this crisis is only the first of many civil courts disasters in the works. In California, where civil courts funding has been cut by a billion dollars over the past few years, they are closing dozens of courthouses and, in effect, dismantling access to the justice system. The state's chief justice has said that the old civil rights issue involved justice, and the new civil rights issue is access to justice.

A canary in that coal mine: it was just over a year ago that state budget cuts closed the East Los Angeles' Kenyon Juvenile Facility, a sort of designated court house for kids in trouble.

Similar to the minor immigrants, many juveniles of Los Angeles were denied the opportunity to improve and change their lives because government focused its priorities elsewhere. And akin to those border children, those kids in L.A. would often like to escape a culture of gang violence, but the "system" is otherwise engaged.

When we cut courts funding, the criminal-court side of the system gets first call on resources -- it has all those pesky constitutional guarantees that prevent years of backlog. So civil courts get less and less. Eventually, when your "day in court" takes years, and hundreds of thousands of cases are backlogged, you have eliminated the civil option.

Moving this new border crisis to the front of the line might mitigate negative press, but for California and other states with growing pressure on civil courts backlogs, you have to utter the words we hate to hear in Southern California: The next one will be much, much worse.

(Sara Corcoran Warner is publisher of the California Courts Monitor website, "Your Daily Ration of Civil Justice Rationing," and a frequent commentator on national legal policy and civil courts issues.)