Why Has This Immigrant Been in Jail for 900 Days if He's Not Being Charged with Anything?

In a baffling case that seems like it could only happen in some kind of horrifying police state, a man in Oregon has been held against his will for 900 days even though he's not being charged with a crime. Yes, this is a thing that can and does happen in the United States, and while there is an explanation, it's not a very satisfying one.

Benito Vasquez-Hernandez is a 58-year-old immigrant who, in September of 2012, was picked up on the street in Madera, California, and taken to Oregon. According to a feature published in the Oregonian, he and his son Moises were supposed to testify against his other son, Eloy Vasquez-Santiago, who was wanted for murder. While in custody, Benito and Moises reportedly incriminated Vasquez-Santiago, which transformed them from people with rights into crucial pieces of evidence.

Initially, the pair was charged with "hindering prosecution," but that charge was later dropped. Ever since then, Benito has been in the county lockup, receiving the same treatment as any other prisoner. For 900 days. To put that in perspective, he was picked up a couple weeks after the release of Taylor Swift's " We Are Never Ever Getting Back Together" video, and he's still in jail just because he has information.

Federal law allows prosecutors to detain a witness "if it is shown that it may become impracticable to secure the presence of the person by subpoena," but some states have imposed limits on the practice to keep it from getting out of hand. For instance, in 2008 the Law Revision Commission of New Jersey looked at these situations and noted that a detained witness is often nothing more than "an innocent citizen whose right to the full enjoyment of liberty is threatened solely because of his potential usefulness as a witness for the government." Seeing as how that's insane and all, state legislators then decided that detentions in New Jersey can't take place in jail.

Oregon, meanwhile, gives prosecutors room to detain someone for as long as they want because they're often in gangs and don't want to squeal on fellow members. Jeff Lesowski, the Washington County prosecutor in charge of this case, told the Oregonian that officials "only ask for it in extraordinary situations."

Federal law suggests that if you can record someone's testimony in advance and let them go, you should do that, as long as "further detention is not necessary to prevent a failure of justice." That's what Oregon law enforcement eventually did with Benito's son Moises, albeit not before he developed a brutal case of schizophrenia behind bars.

What's not mentioned in the federal statute is at what point a person's detention becomes its own "failure of justice."

Justice, in this case, would mean successfully throwing the book at Eloy Vasquez-Santiago, who is being charged with the stabbing death of 55-year-old Maria Bolanos-Rivera in 2012. Said justice will theoretically help her six children, and I guess the rest of us, all sleep a little better at night. But why not just videotape that testimony, and then let poor Benito Vasquez-Hernandez go home?

Prosecutors say they tried that. Last September, he sat down in front of a judge, with a Spanish interpreter sitting next to him, and got a quick lecture about how if he testified against his son, he could go free. Apparently, he just freaked out and demanded to be set free right then and there—probably because he was a scared guy, locked away for years by a foreign justice system, being lectured by a judge. Without sorting everything out, the judge just got tired of listening to his pleas for freedom and yelled, "Get him out of here!"

The trial of Eloy Vasquez-Santiago begins tomorrow, March 17. It's not clear when exactly Benito Vasquez-Hernandez will be asked to testify against his offspring. At this point, it'll be incredibly frustrating for the prosecution if, somehow, his court testimony doesn't actually put his son away.

But at least after the father testifies they'll have to let him go, right? Maybe not. I'm not a lawyer, but it seems like in all likelihood, after testifying, this non-citizen is likely to go straight from county jail to immigration lockup. I tracked down Wes Oliver, Duquesne University Criminal Justice Program director and an expert in the laws regarding material witnesses, figuring he'd know better than anyone else what's about to happen to Vasquez-Hernandez.

VICE: In all likelihood, is this guy headed from county jail to immigration lockup?
Wes Oliver: Yeah, sounds right to me.

Is this the only way to get testimony from non-residents?
Well, once you've been ejected from the country, then you pretty much become unavailable for trial, because the subpoena power of the government can't really get you back.

But how can that possibly be justified?
We're not doing it just willy-nilly. We're doing it because they have evidence relevant to the prosecution, and because their presence at trial gives the defense a shot a cross-examination, so it aids in the fairness of the trial for the defense as well. That's how we justify it.

So it's a gesture of fairness for someone else. It's still got major problems, right?
Here's one huge problem with it: Before we even [discuss] how wrong it is for that particular witness, we don't have any kind of rules that regulate how material this testimony has to be… He doesn't even have to be the star witness.

He's supposedly one of two people who witnessed a confession [from his son]. That's pretty big, no?
His testimony's not gonna be terribly helpful for the prosecution. It'll be somewhat helpful, obviously. If you've already got someone else saying it, it has a cumulative effect, but he's not an eyewitness to the murder.

Could this happen to me?
It sure could. The reason it most likely won't is that you're not a flight risk. You have a stable job and we know how to find you. What's unique about the deportation context is that we know he's a flight risk because we're going to fly him out ourselves.

There's gotta be a better way…
The [law] in Pennsylvania makes a lot of sense, and it works like this: If you have reason to believe a person is a flight risk, you serve a subpoena on them. They have to then come to court and say, "Your honor, this is how you know I'll come to court." And if the judge doesn't believe the person, he can require them to post bond. Or he could hold the person without bail if he thinks they're that much of a risk.

That's still rough.
To me, there ought to be some mechanism if you really think a person's gonna skip out on you. But it ought not be that you can lock them up indefinitely… In the Al-Kidd case [a 2011 Supreme Court case that involved detaining someone so they could testify about 9/11], he was detained for two weeks and when he got to a judge they put him on electronic monitoring. They didn't hold him the entire time…. Still, the federal law that says you can be arrested because you're a flight risk? That to me is unconscionable.

Follow Mike Pearl on Twitter.