ÃÛÌÒÓ°ÏñAV

“We were expecting a tidal wave,� said long-time criminal defense attorney Alejandro Muñoz. “We’ve just been waiting for the hammer to fall. … I’m not really quite sure what’s going on. We’re kind of scratching our heads.�

Five local attorneys told the ÃÛÌÒÓ°ÏñAV in the last week that lawyers and judges have been prepared for an expected surge in criminal prosecutions of immigration violations, and a likely crackdown on the plea deals for low-risk offenders that are common today. But so far, in the early weeks of the Trump administration, not much has changed.

“I haven’t seen a big difference yet,� defense attorney Cheryl Inzunza Blum said Tuesday. “To be honest, the numbers seem lower, if anything else.�

The District of Arizona already leads the nation in immigration-related prosecutions. Most immigration-related cases in federal court involve the felony charge of illegal re-entry after a previous deportation. (First-time illegal entry is a misdemeanor.)

The remainder are mostly drug- or human-smuggling cases, in which the accused is most often a U.S. citizen or resident attempting to enter the U.S. through a port of entry, said Corey Simon, a Tucson attorney who has routinely taken on court-appointed defense cases over his 13 years of practice, most of which end up being immigration-related.

Drug smuggling by undocumented immigrants through the desert is “exceedingly rare� these days, Simon said.

Decisions based on whether to criminally prosecute illegal entry and re-entry cases, and how harsh the penalty should be, typically involve weighing whether the defendant has a criminal history, previous deportations or long-standing ties to the community, and whether it’s the best use of limited judicial resources to bring criminal charges, rather than a quick deportation, attorneys say.

But that prosecutorial discretion was dramatically curtailed under the first Trump administration, particularly after then-Attorney General Jeff Sessions announced a “zero-tolerance� policy in 2018. That resulted in thousands of family separations and overstretched courthouse loads, as prosecutors sought to criminally charge even first-time illegal border-crossers.

That discretion is again in the crosshairs of Trump’s Department of Justice. Immigration-related cases are prosecuted by U.S. Attorneys offices, which recently received guidance from the DOJ telling prosecutors, as well as federal law enforcement agencies, to prioritize immigration-related offenses and to seek the highest penalties possible.

Arizona’s current U.S. Attorney Gary Restaino, who expects to be replaced by the Trump administration soon, has declined to discuss the DOJ guidance with the Star. Restaino said in January that his office had "hit the right balance" in focusing resources on cases that truly merit a criminal prosecution, under the Biden administration’s DOJ.

Defense attorneys are also expecting prosecutors will be less willing, or able, to offer plea deals or alternatives like probation, based on the individual circumstances of a case.

“We’ve got reason to believe that we’re gonna run up against a lot more hard-line stances, where certain pleas that might have been available before are not offered,� Simon said.

The expected changes not only have implications for defendants, but for federal spending. Unlike in deportation proceedings, defendants in criminal cases have the right to court-appointed counsel. Some defense lawyers worry, amid the Trump administration’s focus on cost-cutting, bureaucrats may seek to reduce access to counsel when they see what the cost of that will be.

Ramping up prosecutions, and reducing options for plea deals, will likely increase spending on court-appointed lawyers and lengthen the duration of cases, Muñoz said.

“The outcome is that we’re gonna have a lot more trials,� he said. “If I have a case where a client of mine is facing a 10-year mandatory minimum and the prosecutor won’t allow (a plea), my options are to plead my client guilty and get 10 years, or go to trial and if he loses, get 10 years. So I’ll try my luck.�

Detention costs would also surge with longer sentences. The cost of detaining someone for one year in Bureau of Prisons facilities is nearly $50,000, or $4,100 per month, according to estimates from the Administrative Office of the U.S. Courts, which a defense attorney shared with the Star.

And there’s the human cost, Simon said.

“To me, I’m not even thinking about the drain on resources; I’m thinking about the years lost of people’s lives based on arbitrary sentences because somebody just decides that it’s a good look to say, ‘We’re in favor of law and order,’ and the manifestation of that is simply being unreasonable or capricious about charging decisions, or sentencing decisions,� he said.

The Trump administration hopes heightened prosecutions will have a deterrent effect on illegal entries into the U.S., which dropped dramatically in 2024 from record highs in December 2023. Migrant arrests by border agents have dropped even further since Trump took office, which some attribute to smugglers and migrants taking a “wait-and-see� approach.

Immigrant-rights advocates counter that the administration’s severe cuts to international-aid programs undermine efforts to address the root causes of migration, including violent conflict, famine, crime, corruption and economic insecurity, at a time when the U.S. is shutting down legal pathways to immigrate.

Simon said the federal push to boost criminal convictions of immigrants appears to be more about politics than thoughtful policy.

“My personal opinion is probably that to them, it’s a stats game,� he said. “And so the more illegal re-entry prosecutions they can point to and say, ‘Look at all these convictions we’ve obtained,’ it kind of gives the illusion or appearance that they’re accomplishing something.�

But the outcome will mean charging and sentencing decisions based on “arbitrary� edicts from outside the courtroom, rather than “individualized assessments based on a full consideration of factors,� Simon said.

“That’s always a negative to me,� he said, “because it’s taking discretion out of the hands of individual prosecutors to negotiate with the defense, and it’s taking discretion out of the hands of judges to decide a fair sentence.�

Glimpse of the courtroom

On the morning of Feb. 11 at the DeConcini U.S. Courthouse in downtown Tucson, proceedings were nothing out of the ordinary. About three dozen men and two women — all charged with the misdemeanor offense of illegal entry, and the felony offense of illegal re-entry — sat before Magistrate Judge Bruce Macdonald for their 9:30 a.m. hearings, in which all the defendants had agreed to plea deals.

The men wore bright-orange prison jumpsuits, and the women were in maroon. Most had on black headsets that provide a translation of the proceedings.

All had been detained within the past month after crossing the U.S.-Mexico border outside U.S. ports of entry, with entry points throughout the Border Patrol’s Tucson sector, ranging from near Lukeville to Douglas, according to the charges read by the judge.

In groups of 10, the defendants stood as Judge Macdonald quickly recounted each of their charges. One by one, each pleaded guilty to their misdemeanor charge of illegal entry, in exchange for the felony re-entry charge being dropped. The defendants were all sentenced to between 30 and 75 days in prison.

These are so-called “flip flop� cases, which advocates have criticized for how quickly they move and for infringing on defendants’ right to due process. But some defense attorneys said they get their clients out of detention quickly, and offer the best deal they’re going to get.

After the last of the defendants exited the courtroom, accompanied by U.S. Marshals Service deputies, Macdonald waited for the 10:30 a.m. cases to begin, mostly detention hearings for illegal re-entry cases.

The judge looked at the nearly empty courtroom, holding only four defendants.

“I thought everything was going to get busier, but it’s been less busy,� he mused to the quiet room.

“Maybe it’s the calm before the storm?� an attorney replied.