Prosecutions of cross-border drug smuggling cases appear to be falling, even as the quantity of hard drugs being seized along San Diego’s border has been on the rise.

Analyses by the Transactional Records Access Clearinghouse, a research center at Syracuse University, show that federal drug prosecutions were already reaching historic lows under the Trump administration even before Attorney General Jeff Sessions instituted a “zero tolerance” policy at the border, under which virtually everyone caught entering the country illegally is charged with a misdemeanor crime. The surge in prosecutions of those crimes only further crowded out other types of prosecutions at the border – including drugs.

Statistics from the San Diego district attorney’s office show that despite a two-month bump this year in which the number of drug prosecutions surged, it has steadily been receiving fewer drug cases to prosecute from federal agencies and is on track to receive fewer referrals this year than at any point in the past five years.

Meanwhile, data from Customs and Border Protection show steady increases since 2012 in the amounts of hard drugs seized at San Diego’s border.

The U.S. attorney’s office disputes numbers suggesting fewer drug cases are being prosecuted, but would not provide any numbers of its own. A spokeswoman said the office doesn’t release statistics until they’ve been certified at the end of each fiscal year, but that drug prosecutions are on track to be at the same levels as last year.

The District Attorney’s Role in Cross-Border Drug Prosecutions

In the mid-‘90s, the San Diego County district attorney’s office reached an agreement with the U.S. attorney and other federal agencies to prosecute cases involving marijuana brought through the port of entry in its South Bay office. As smuggling trends have shifted, the state has handled more of other types of cross-border drug smuggling cases, like heroin and meth.

Miguel Unzueta, a former U.S. Immigration and Customs Enforcement Homeland Security Investigations special agent in charge of the San Diego sector who retired two years ago, said the federal court system was getting overwhelmed in the ‘90s.

“We had so many drug cases that it was shutting down the ability of the entire federal criminal justice system in San Diego to deal with them,” Unzueta said. “Some days we were getting upwards of 20 drug seizures in a 24-hour period.”

Today, about 75 percent of federal drug smuggling cases involve more than a kilo, district attorney’s office spokeswoman Tanya Sierra told Voice of San Diego in June.

“Traditionally, cases involving transporting drugs across the border in vehicles involve a large quantity of drugs,” Sierra said. “We’ve been handling these types of cases for many years.”

The district attorney’s office receives funding to assist in federal drug prosecutions. The office said it’s received the same amount of money for 2016, 2017 and 2018 from the grant: $630,997.

As immigration cases surged earlier this year, federal prosecutors in the Southern District of California began diverting resources to handle misdemeanor immigration prosecutions, USA Today reported in June. Prosecutors had new deadlines for drug smuggling reports – meaning agents would have to produce and submit reports in a matter of hours – or the cases would be dropped.

The San Diego district attorney’s office began taking on a higher load of cross-border drug cases, as the Union-Tribune reported.

In July, when the Southern District of California began an expedited, separate court system to better manage the immigration-related misdemeanors flooding the courts under zero tolerance, the number of drug cases being sent from federal prosecutors to the district attorney’s office appeared to level off.

Between June 1 and July 31, Customs and Border Protection, Immigration and Customs Enforcement and the U.S. Dept. of Homeland Security submitted 108 drug cases to the DA’s office. Of those, the DA filed 66 cases.

For the same time period last year, federal agencies submitted 78 drug defendants to the DA’s office; the DA filed 68 cases and rejected 10.

Despite the bump in May and June, federal agencies seem to be referring the lowest number of cases to the district attorney’s office in years.

In 2014, federal agencies sent 3,640 cases to the DA’s office for prosecution. In 2017 that number had fallen to 985. This year, between January and July, the number is 365, on track to be lower than last year.

Prosecutions Are Down, But Drug Quantities Are Up

Increasingly large quantities of drugs are being seized at San Diego’s border.

The region has become a major gateway for hard drug smuggling along the U.S.-Mexico border.

Meth, heroin and deadly fentanyl have steadily been coming across the border in higher numbers. U.S. Customs and Border Protection said it could only provide seizure data by weight seized – not the number of seizures. So it’s possible officials could be seizing fewer, but larger loads of drugs, which could in turn impact the number of prosecutions.

The U.S. attorney’s office still prosecutes many of the larger drug cases, like two seizures of thousands of pills that turned out to be fentanyl disguised as oxycodone a couple of weeks ago.

Defense attorneys say they’ve been seeing fewer drug felonies come across their desks, but don’t believe that it’s because there is less actual smuggling.

“I can say for the record that in my 30 years of experience practicing federal criminal defense in SD this number of border drug-smuggling cases is the lowest I have seen,” Victor Torres, a long-time defense attorney, told Voice of San Diego in an e-mail last month.

Federal court filings for cross-border drug-smuggling cases have dropped over the past few months, and are far lower than last year, according to a VOSD analysis using PACER, the federal court’s online filing document system, to count all drug importation charges filed in those time periods.

The U.S. attorney’s office disputed these numbers, but wouldn’t provide its own.

“As a matter of longstanding policy, [Department of Justice] generally does not certify and release criminal prosecution statistics until the end of the fiscal year,” Kelly Thornton, spokeswoman for the U.S. attorney’s office, said in an e-mail. “Our drug prosecutions are consistent with past years.”

The Transactional Records Access Clearinghouse also found that drug importation filings for the Southern District of California were up in July from June, but still down 9 percent from last year, and down 28 percent from the year before.

Unzueta, the former Homeland Security Investigations official, said that while he thinks drug prosecutions do effectively deter drug smuggling, they’ve always ebbed and flowed over time.

“Not every single case gets prosecuted,” Unzueta said. “Cases get filed and then dismissed. Individuals may cooperate and prosecutions may be withheld because of cooperation. It may just be a cyclical kind of thing.”

Charles LaBella, a former prosecutor in the U.S. attorney’s office in San Diego, said that immigration prosecutions could be crowding out other types of cases – but that there are likely other factors at play too, including possibly a lack of communication or coordination with authorities in Mexico.

LaBella said fewer drug prosecutions could have a negative impact in the United States because it would mean fewer chances to gather intelligence about drug operations.

Low-level drug mules, for example, sometimes give prosecutors useful information because they fear being put in jail, he said.

“The real loss isn’t the deterrent effect,” LaBella said. “The real loss is intelligence.”