Months ago, as a federal judge worked through a docket of smuggling cases in the border city of Laredo, Tex., three people were escorted into the courtroom. Because they were undocumented immigrants, the judge explained, they would be jailed. They were not being charged with a crime. Instead, they would be compelled to testify against the people accused of helping them enter the U. S. 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. In jail, they joined a long list of people — nearly 104,000 since 2003 — detained as so-called material witnesses in federal criminal proceedings, the New York Times reports. 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 the U.S. has prioritized the prosecution of human-smuggling cases, according to an analysis by the Times of U.S. Marshals Service data obtained in a public records request.
The annual number of detainees first spiked during the George W. Bush administration, peaked at more than 8,500 during Donald Trump’s presidency, dipped with the onset of the pandemic and then rebounded last year under President Biden, with nearly 5,000 people jailed. Detentions in the first four months of 2023 were up 30 percent compared with last year. Despite their significant numbers and sometimes lengthy detentions — nearly 850 people detained in the past decade have been confined 180 days or longer — the witnesses register as little more than a footnote in the debate over unauthorized immigrants and serve as essential but unseen players in smuggling prosecutions. Although lengthy detentions of material witnesses “deprives them of due process,” said Kenneth Magidson, a Texas U.S. Attorney in the Obama administration, people “entering the country illegally have to face certain consequences — and this is one of them ... You could be a material witness, and you can get deported, or you can go to jail." The Justice Department said the detainees “provide indispensable testimony” and are “held only as long as necessary to ensure a just resolution of such cases.”