Illegal Marijuana: Opportunities Exist to Improve Oversight of State and Local Eradication Efforts

Marijuana is generally illegal under federal law. Nonetheless, an increasing number of states have legalized medical or recreational marijuana under state law. However, in these states, some marijuana-related activity may still be illegal under state law. Since 1981, DEA's DCE/SP has provided financial support to participating state and local agencies for their efforts to eradicate illegal marijuana.

GAO was asked to review DEA's DCE/SP. This report examines (1) DCE/SP funding and expenditures in recent years, (2) how DEA ensures that participating agencies expend funds in accordance with program requirements, and (3) how DEA uses performance assessment to help manage DCE/SP. GAO analyzed DCE/SP guidance, and expenditure and performance information from 2015 through fiscal year 2017, and evaluated DEA's oversight and performance management efforts against internal control standards. GAO also interviewed officials from DEA, the U.S. Forest Service, and participating agencies in six states, which GAO selected to include varying levels of DCE/SP funding and numbers of marijuana grow sites eradicated in recent years.

The Drug Enforcement Administration (DEA) obligated over $17 million annually on average from 2015 through 2018 to its Domestic Cannabis Eradication/ Suppression Program (DCE/SP)—which supports participating state and local law enforcement agencies' efforts to eradicate illegal marijuana. DEA obligated funds to participating agencies in states with and without marijuana legalization laws. Participating agencies expended the majority of funds on aviation support and overtime (see fig. below). Officials told GAO they expended funds to help eradicate marijuana that was not in compliance with state and local marijuana laws. For example, officials in California—a state with medical and recreational marijuana legalization laws—said that all of their eradication occurs on public lands such as national forests, or private land that had been trespassed upon. In total, agencies have eradicated several million plants annually in recent years.

Participating Agencies' Top Domestic Cannabis Eradication/Suppression Program (DCE/SP) Expenditures in Recent Years

DEA oversees participating agencies' compliance with program expenditure requirements in various ways, but does not consistently collect supporting documentation for expenditure reports. DEA field officials collect varying levels of documentation, and headquarters officials were not aware of these varying practices. DEA officials said they are now working to address this issue, but they have not developed a plan with specific actions and time frames for completion. By developing and implementing such a plan, DEA could have greater assurance that funds are being expended appropriately.

DEA collects information on program activities to help manage DCE/SP, such as number of plants eradicated. However, participating agencies GAO spoke with have practices for reporting some program activities that differ from DEA's guidance due to varying interpretations of the guidance. As a result this information is neither fully accurate nor reliable for assessing program performance. Also, DEA has not clearly documented all of its program goals or developed performance measures to assess progress toward those goals. Improving the reliability of the information it collects, clearly documenting all program goals, and developing performance measures could provide DEA with the information it needs to manage the program more effectively.

GAO is making four recommendations, including that DEA develop a plan to ensure the collection of consistent documentation of expenditures, clarify its guidance for reporting program activities, document all of its program goals, and develop performance measures. DEA concurred with the recommendations.

Marijuana is the most widely available and commonly used illegal drug in  the United States, and the only major illegal drug grown domestically,  according to the Drug Enforcement Administration (DEA). Within the  Department of Justice (DOJ), DEA is the primary federal law enforcement  agency responsible for investigating and enforcing potential violations of  the Controlled Substances Act of 1970, as amended. Under the Act  generally, it is a federal crime for any person to knowingly or intentionally  manufacture, distribute, dispense, or possess marijuana. As part of its  marijuana enforcement efforts, DEA began providing financial assistance  to state and local law enforcement agencies to support their efforts to  eradicate and suppress illegal, domestically-grown marijuana in 1979.  DEA formally established this assistance through its Domestic Cannabis  Eradication/Suppression Program (DCE/SP) in 1981. In fiscal year 2018,  DEA obligated $14 million to state and local law enforcement agencies  through DCE/SP to support eradication and suppression of illegal  marijuana.

Despite the federal government’s long-standing prohibition on marijuana,  an increasing number of states have legalized medical or recreational  marijuana under state law over the past two decades. In 2015, we  reported on DOJ’s efforts to monitor the effects of state marijuana legalization relative to DOJ marijuana enforcement policy, including  August 2013 guidance which provided additional clarification of DOJ’s  priorities and certain circumstances that may warrant DOJ to challenge a  state’s implementation of its marijuana legalization program. The August  2013 guidance instructed DOJ’s prosecutorial and law enforcement  components to focus marijuana enforcement efforts on priorities that were  particularly important to the federal government, leaving all other  enforcement of state law pertaining to marijuana-related activity to state  and local law enforcement agencies and regulatory bodies. We  recommended that DOJ document a plan specifying its monitoring  process, and share the plan with DOJ components. DOJ concurred with  the recommendations. In January 2018, the Attorney General rescinded  DOJ’s marijuana enforcement policy, including the August 2013  guidance. Subsequently, we closed this recommendation as not  implemented.

Given trends in marijuana legalization under state law, questions have  been raised about the necessity and effectiveness of DEA’s DCE/SP. You  asked us to review DEA’s DCE/SP. This report addresses the following  questions:  1.  How much funding has DEA obligated to DCE/SP in recent years, and  how have participating agencies expended program funds?  2.  How does DEA ensure that participating agencies expend DCE/SP  funds in accordance with program requirements?  3.  How does DEA use performance assessment to help manage  DCE/SP?

To address all three questions, we analyzed relevant DEA  documentation, and interviewed DEA officials in headquarters. We also  conducted semi-structured interviews with officials from DEA, the U.S.

Forest Service, and participating agencies in the following six states:  California, Georgia, Kentucky, Michigan, Nevada, and Texas. We  selected these states to include varying levels of DCE/SP funding and  numbers of marijuana grow sites eradicated from 2014 through fiscal year  2016—the most recent year for which DEA data were available at the  time of our state selection. The six states in our sample collectively  received approximately 52 percent of total DCE/SP funding obligated to  states from 2014 through fiscal year 2016. When selecting states, we also  considered whether a state had experienced a significant level of  marijuana eradication on national forests in recent years, as well as the  status of medical or recreational marijuana legalization under state law.  For each of our selected states, we interviewed DEA field officials  responsible for implementing DCE/SP in the state; Forest Service law  enforcement officials responsible for overseeing and conducting  marijuana eradication efforts on national forests in the state; and  participating agencies’ points-of-contact for DCE/SP. We conducted our  interviews in person in California, Georgia, and Texas. The information  we obtained from these interviews cannot be generalized to all states that  received DCE/SP funding, but provides a range of perspectives and  experiences regarding DCE/SP from federal, state, and local law  enforcement officials.

To address our first question, we also reviewed DEA documentation  related to DCE/SP funding, including DEA’s funding requests for DCE/SP  from DOJ’s Assets Forfeiture Fund for fiscal years 2015 through 2018.  We reviewed documents describing how participating agencies use  program funds, including the DCE/SP Coordinator Handbook and  Program Guide (DCE/SP Handbook), participating agencies’ annual  strategic plans for using DCE/SP funds to conduct eradication and  suppression activities, and letters of agreement between participating  agencies and DEA. Also, we analyzed DEA data on (1) DCE/SP funding  obligated to participating agencies, and to DEA for program support from  2015 through fiscal year 2018 and (2) DCE/SP funding expended by  participating agencies in each state from 2015 through fiscal year 2017,  organized by categories of expenses, such as overtime and equipment.

To assess the reliability of DEA’s funding data, we reviewed the data for  any missing elements, outliers, and obvious errors, and interviewed  agency officials knowledgeable about the data. We determined that  DEA’s funding data for DCE/SP were sufficiently reliable for the purpose  of reporting obligations at the program and state levels, as well as  participating agencies’ aggregate expenditures by category. Furthermore,  we interviewed DEA and Forest Service headquarters and field officials,  and officials from participating agencies in each of our selected states to  obtain perspectives on how participating agencies expended DCE/SP  funds. We also viewed items that participating agencies purchased using  DCE/SP funds in California, Georgia, and Texas, and observed a  marijuana grow site on federal land that participating agencies eradicated  in California and Georgia as part of our in-person visits.

To address our second question, we also reviewed DEA’s guidance for  expending DCE/SP funds, including the DCE/SP Handbook and letters of  agreement between DEA and participating agencies. We reviewed  documentation related to DEA’s processes for overseeing participating  agencies’ expenditure of program funds, including purchase request  forms, quarterly expenditure reports, and reports describing the results of  DEA site visits to participating agencies’ facilities and operations during  fiscal year 2017—the first year for which these reports were available.  Furthermore, we interviewed DEA headquarters officials responsible for  the overall management and oversight of DCE/SP, and DEA field officials  responsible for providing guidance to participating agencies on expending  program funds, and for collecting and reviewing participating agencies’  information on program expenditures. We also interviewed officials from  participating agencies in each of our selected states, and reviewed  supporting documentation for DCE/SP expenditures to better understand  the amount and types of information participating agencies submit to  DEA. We evaluated DEA’s efforts to oversee participating agencies’  expenditure of DCE/SP funds, such as its practices for collecting and  reviewing receipts and supporting documentation for program  expenditures, against agency requirements for participating agencies to  submit information on program expenditures to DEA. We also compared  these efforts against standards for project management.

To address our third question, we also reviewed DEA documentation  related to performance management, including the DCE/SP Handbook  and congressional budget justifications for fiscal years 2012 through  2018. We analyzed DEA’s data on the marijuana eradication and  suppression activities conducted as part of DCE/SP, such as the number  of marijuana plants eradicated, pounds of processed marijuana seized,  and arrests made, for 2015 and fiscal years 2016 through 2017—the  most recent year for which these data were available. To assess the  reliability of DEA’s data on marijuana eradication and suppression  activities, we reviewed the data for any missing elements, outliers, and  obvious errors, and reviewed documentation about the data. We also  interviewed officials from DEA and participating agencies about the  reliability of the data. Specifically, we interviewed DEA field officials  responsible for providing guidance to participating agencies on reporting  data to DEA, and for reviewing the data that participating agencies report.  Furthermore, we interviewed officials from participating agencies in each  state about how they collect and report data to DEA on their agency’s  marijuana eradication and suppression activities. We determined that the  data were not fully reliable for the purpose of assessing program  performance. As a result, we do not include these data in this report. In  addition, we interviewed DEA headquarters officials to determine how  DEA uses the data it collects to help manage the program, including the  extent to which DEA uses the data to measure progress toward goals and  performance measures for DCE/SP. We evaluated DEA’s practices for  collecting and using program data to assess performance and manage  the program, which we derived from our review of agency documentation  and interviews with DEA officials, against the Government Performance  and Results Act of 1993 (GPRA), as amended by the GPRA  Modernization Act of 2010 (GPRAMA); federal internal control  standards related to defining and measuring progress on agency  objectives and using and communicating quality information; and our  prior work describing important attributes of successful performance  measures.

We conducted this performance audit from September 2017 through  November 2018 in accordance with generally accepted government  auditing standards. Those standards require that we plan and perform the  audit to obtain sufficient, appropriate evidence to provide a reasonable  basis for our findings and conclusions based on our audit objectives. We  believe that the evidence obtained provides a reasonable basis for our  findings and conclusions based on our audit objectives.

Marijuana refers to the dried leaves, flowers, stems, and seeds from the  cannabis plant, which contains the psychoactive or mind-altering  chemical delta-9-tetrahydrocannabinol (THC), as well as other related  compounds. Marijuana is a controlled substance under federal law and is  classified as a Schedule I drug—the most restrictive of categories of  controlled substances by the federal government. The Controlled  Substances Act of 1970, as amended, does not allow Schedule I drugs,  including marijuana, to be dispensed with a prescription, and provides  federal sanctions for the possession, manufacture, distribution,  dispensing, or use of such drugs.

However, as of July 2018, 32 states and the District of Columbia had  passed voter initiatives or legislation legalizing marijuana for medical  purposes under state or territorial law. Of these, nine states and the  District of Columbia had also passed voter initiatives or legislation  legalizing marijuana for recreational purposes under state or territorial  law. In addition, another 15 states have laws only pertaining to the use of  products containing cannabidiol, also known as CBD, one of the non- psychoactive ingredients in marijuana plants. Nonetheless, federal  penalties remain, and some marijuana-related activity may also be illegal  under state law, including in states that have legalized marijuana for  medical or recreational purposes. Figure 1 shows a map of marijuana  legalization under state or territorial law, as of July 2018.

Illegal Marijuana Cultivation and Eradication

Marijuana is the only major illegal drug grown domestically, according to  DEA. Individuals and larger organized groups, such as drug trafficking  organizations, establish outdoor and indoor grow sites to cultivate  marijuana. Outdoor grow sites can be located on privately-owned land,  such as residential yards, farms, and timber lands, and publicly-owned  land, such as national forests, as shown in Figure 2. Indoor grow sites  can be located in residential houses and larger warehouses.

Previously, we, along with the U.S. Department of Agriculture’s (USDA)  Office of Inspector General (OIG) have reported on the environmental  effects of illegal marijuana cultivation on federal lands. For example, in  2010, we reported that illegal marijuana cultivation on federal lands can  involve, among other things, the application of pesticides, herbicides,  fertilizers, and other chemicals, including chemicals that may be banned  in the United States; removal of natural vegetation; diversion of water  from streams; and deposits of large amounts of trash and human waste.  In 2018, USDA’s OIG reported that trash and chemicals such as  pesticides and fertilizers may remain at eradicated marijuana grow sites  on national forest lands for multiple years, partly due to the cost of  cleanup, which can reach as high as $100,000. Figure 3 shows  examples of environmental effects of illegal marijuana cultivation on  federal lands in California and Georgia.

Marijuana eradication operations can encompass the following activities:  seizure and destruction of marijuana plants, seizure and destruction of  processed marijuana—which is smokeable marijuana in the drying  process, loose, or packaged; confiscation of weapons and assets; and  apprehension of individuals at the grow site. Additionally, operations may  include the removal of trash and infrastructure, such as propane tanks  and irrigation tubing, from outdoor grow sites during or after eradication  operations to reduce the likelihood that growers will return.

DEA’s Domestic Cannabis Eradication/Suppression Program

DEA established DCE/SP in 1981 to support participating state and local  law enforcement agencies in their efforts to eradicate and suppress  illegal, domestically-grown marijuana. Over the past three decades,  DEA has provided support for marijuana eradication and suppression  efforts through DCE/SP in all 50 states, Puerto Rico, Guam, and the U.S.  Virgin Islands. In fiscal year 2018, DEA obligated DCE/SP funding to  125 participating agencies in 37 states.

DEA’s Office of Operations Management, Investigative Support Section is  responsible for the overall management and oversight of DCE/SP.  Personnel from DEA’s field divisions and contractors are responsible for  implementing DCE/SP in the field. Specifically, DEA field divisions assign  a special agent to serve as DCE/SP coordinator for each state in its area  of responsibility. DCE/SP coordinators are responsible for reviewing  participating agencies’ annual strategic plans for DCE/SP, and approving  certain purchase requests, among other things. DEA also contracts for  analytical and administrative support for the program. The contract  provides DEA with six personnel, referred to as regional contractors,  whose primary duties include providing guidance to participating agencies  on allowable program expenditures, and reviewing the information  participating agencies report to DEA on their program expenditures and  eradication and suppression activities.

DEA’s implementation of DCE/SP is a multi-step process with activities  performed by DEA and participating agencies during each step, as shown  in Figure 4. Each year, DEA requests and receives funding for DCE/SP  from DOJ’s Assets Forfeiture Fund. To participate in DCE/SP, a state or  local law enforcement agency must apply and enter into a reimbursable  funding agreement with DEA. Specifically, a participating agency must  submit an annual strategic plan describing, among other things, how it  intends to use DCE/SP funding to address the illegal domestic marijuana  threat in its area of responsibility, and coordinate with other federal  agencies, such as the Forest Service. DEA and the participating agency  then sign a letter of agreement, whereby the participating agency agrees  to eradicate and suppress illegal marijuana as part of DCE/SP, and DEA  agrees to provide a specified amount of funding to the participating  agency to defray the costs of those activities. This agreement also  outlines program restrictions and requirements for participating agencies,  which include only using DCE/SP funds to reimburse expenses that DEA  has deemed allowable; obtaining approval from DEA prior to expending  DCE/SP funds on certain items; submitting an expenditure report to DEA  each quarter; and collecting and reporting to DEA information on its  marijuana eradication and suppression activities.

DEA Obligated Over $17 Million Annually on Average to DCE/SP in Recent Years; Participating Agencies Expended Most Funds on Aviation Support and Overtime

DEA Obligated Between $12.4 Million and $22 Million Annually to DCE/SP from 2015 Through Fiscal Year 2018; Five States Were Obligated About Half of the Funds Each Year

DEA obligated about $17.7 million annually on average to DCE/SP from  2015 through fiscal year 2018. As shown in Figure 5, the total amount of  funding DEA obligated to DCE/SP decreased from $22 million in 2015 to  $12.4 million in fiscal year 2017, and increased to $18 million in fiscal  year 2018.

During each year of the 4-year time frame we reviewed, DEA obligated  most of the DCE/SP funds to support the marijuana eradication efforts of  the participating agencies—for example, $14 million of the $18 million in  fiscal year 2018 went to 125 participating agencies in 37 states, or  approximately $378,000 on average per state. DEA obligated the  remaining funds—for example, $4 million in fiscal year 2018—to pay for  program support. This support includes payments for the following items:

The DEA Aviation Division, which provided reconnaissance,  surveillance, undercover operations, and marijuana eradication  support to selected participating agencies, according to DEA  documentation. The Aviation Division prioritized its support to  participating agencies based upon their past eradication operations,  the availability of aviation support provided by other participating  agencies, and DCE/SP coordinators’ request for support.

Equipment, travel, and training for DEA headquarters and field  divisions to support eradication activities.

Six regional contractors that provided administrative support to the  program.

Figure 5 also shows that in each year from 2015 through fiscal year 2018,  about half of total DCE/SP funds went to participating agencies in five  states. For example, in fiscal year 2018 DEA obligated 48 percent of  these funds to participating agencies in California, Kentucky, Georgia,  Texas, and Tennessee. Moreover, by magnitude, California, Kentucky,  Georgia, and Tennessee were among the top five states in each of the 4  years we examined.

DEA headquarters officials reported that they obligate funding to  participating agencies based on various factors, including the agencies’  past performance, their level of matching investment in the program, and  the approximate amount of illegal growing in an area. DEA headquarters  officials noted that some marijuana grows may still be illegal under state  and local law—even in those states that have legalized or regulated  marijuana in some form under state or local law. As such, DEA has  obligated funds to participating agencies in states with and without some  form of marijuana legalization under state law.

Participating Agencies Expended Most Funds on Aviation Support and Overtime in Recent Years

Participating state and local agencies have expended DCE/SP funds on a  range of items, as described below. However, we calculated that two  items— aviation support and overtime —accounted for a large majority of  their expenditures in each of the 3 years we reviewed from 2015 through  fiscal year 2017. For example, participating agencies expended 46  percent on overtime and 38 percent on aviation support in fiscal year  2017, as shown in Figure 6.

Aviation Support. Participating agencies expended 43 percent ($17.0  million) of their DCE/SP funds to rent aircraft or purchase fuel for aviation  support from 2015 through fiscal year 2017, according to DEA data. For  example, officials from a participating state agency in California reported  expending DCE/SP funds to contract for the use of helicopters for at least  90 days per year, which they use to support marijuana eradication efforts  across the state. Officials from participating local agencies in California  reported that aircraft support is critical to their marijuana eradication  efforts because it allows them to conduct aerial surveillance to detect  possible marijuana grow sites, transport personnel in and out of grow  sites in remote areas, and remove large quantities of marijuana plants  from grow sites, as shown in Figure 7.

Overtime. Participating agencies expended 40 percent ($16.0 million) of  their DCE/SP funds to pay employee overtime from 2015 through fiscal  year 2017, according to DEA data. Officials from a participating agency  in Nevada told us that marijuana eradication is labor-intensive—in some  cases involving long hikes and camping in the mountains—which can  result in overtime costs. In addition, officials from a participating agency in  Michigan told us that they expend DCE/SP funds to reimburse members  of state task force teams for overtime costs incurred during their  participation in marijuana eradication operations, which generally involves  1- to 3-hour extensions of their regular shifts.

Travel and per diem. Participating agencies expended 6 percent ($2.3  million) of their DCE/SP funds to pay travel and per diem costs from 2015  through fiscal year 2017, according to DEA data. For example, officials  from a participating agency in Nevada reported that traveling to marijuana  grow sites in remote areas may take up to 6 hours, which requires them  to incur travel and per diem costs for overnight stays. In addition, DEA  headquarters officials reported that officials from participating agencies  who attend the DCE/SP national strategic meeting are permitted to  expend DCE/SP funds to pay for travel and per diem expenses.  According to DEA headquarters officials, federal, state, and local officials  from across the country attend the strategic meeting to discuss trends  and issues related to illegal marijuana cultivation, and DCE/SP’s priorities  and goals.

Supplies, clothing, and protective gear. Participating agencies  expended 3 percent ($1.1 million) of their DCE/SP funds to purchase  supplies, and another 2 percent ($0.8 million) to purchase clothing and  protective gear from 2015 through fiscal year 2017, according to DEA  data. For example, officials from a participating agency in Texas  reported expending DCE/SP funds to purchase machetes for cutting  marijuana plants; cameras for taking pictures or filming at eradication  sites; backpacks and hydration bladders; Global Positioning System  devices for navigation; first aid kits; gloves to protect personnel from  pesticides, fertilizers, and other hazardous chemicals; and heavy-duty  pants and shirts, as shown in Figure 7.

Equipment. Participating agencies expended 3 percent ($1.0 million) of  their DCE/SP funds to purchase equipment from 2015 through fiscal year  2017, according to DEA data. For example, officials from participating  agencies in Georgia, Kentucky, and Texas told us that they have  expended DCE/SP funds to purchase all-terrain vehicles, which they use  to help access marijuana grow sites more quickly than on foot, and help  them to navigate difficult terrain, including mountainous areas. Figure 7  includes a photo of an all-terrain vehicle purchased with DCE/SP funds.

All other expenditures. Participating agencies expended 2 percent ($0.6  million) of their DCE/SP funds on training, and another 1 percent ($0.4  million) on miscellaneous commercial contracts from 2015 through fiscal  year 2017. Participating agencies also expended less than 1 percent of  their DCE/SP funds on both container and space rental ($0.2 million) and  vehicle rental ($0.1 million) from 2015 through fiscal year 2017.

Factors that affect how participating agencies expended funds.  Officials from participating agencies we spoke with in six selected  states—California, Georgia, Kentucky, Michigan, Nevada, and Texas—as  well as DEA and Forest Service, provided perspectives on factors that  affected how participating agencies expended DCE/SP funds to support  their marijuana eradication efforts.

State marijuana legalization. Officials we spoke with said that  they expended DCE/SP funds to help eradicate marijuana grow  sites not in compliance with their state and local laws. For  example, in Georgia—where medical or recreational marijuana  has not been legalized under state law—state officials reported  that they strive to eradicate all marijuana grow sites. By  comparison, state and local officials in California—where medical  and recreational use of marijuana is legal under state law—said  that all of the grow sites they eradicate are in violation of state and  local laws. These grow sites include those on public lands such as  national forests, and private land that had been trespassed  upon.

Marijuana eradication on national forests. DEA requires  participating agencies to coordinate with Forest Service when  conducting DCE/SP-funded eradication efforts on national forests.

Officials from Forest Service and participating agencies we spoke  with reported that they coordinate with one another when planning  and conducting marijuana eradication on national forests—and  that some of these efforts are funded by DCE/SP. For example,  Forest Service officials in Kentucky reported that they participate  in planning meetings with the state’s marijuana eradication task  force. During the eradication season, Forest Service conducts  aerial surveillance in helicopters funded by the state police using  DCE/SP funds, and assists with eradication operations when  available. As another example, officials in Georgia reported  expending DCE/SP funds to conduct aerial surveillance to detect  possible marijuana grow sites on national forests.

Officials from some participating agencies we spoke with reported  that they were able to expend DCE/SP funds to assist Forest  Service with the removal of infrastructure such as sleeping bags  and irrigation tubes at marijuana grow sites on national forests.  For example, officials from a participating state agency in  California reported that they assist with the removal of basic  infrastructure and chemicals when feasible. However, Forest  Service is responsible for the removal of infrastructure and  subsequent environmental reclamation on national forests.

DEA Oversees Participating Agencies’ Expenditure of DCE/SP Funds in Various Ways, but Does Not Consistently Collect the Supporting Documentation

DEA Provides Guidance, Pre-approves Purchases, Conducts On-Site Observations, and Reviews Information on Participating Agencies’ Expenditures to Help Ensure Compliance with Program Requirements

DEA oversees participating agencies’ expenditure of DCE/SP funds in  various ways to help ensure compliance with program requirements,  including the following:  Provides guidance. DEA provides participating agencies a copy of its  DCE/SP Handbook which describes, among other things, information on  allowable and non-allowable uses of DCE/SP funds. For example, the  Handbook explains that participating agencies may expend DCE/SP  funds to pay overtime costs of officers participating in eradication  activities if the officers otherwise would be unable to participate, but may  not expend DCE/SP funds to pay for employee benefits. In addition,  participating agencies may expend DCE/SP funds on equipment, such as  all-terrain vehicles and Global Positioning System devices, but not  purchase body armor, firearms, or tasers. See Table 1 for additional  information on allowable uses of DCE/SP funds.

Pre-approves certain purchases. DEA pre-approves certain equipment  purchases, and requires additional review procedures to pre-approve  higher-cost items. According to DEA guidance and headquarters officials,  participating agencies are required to submit a purchase request form to  DEA for the purchase of all durable supplies, materials, and equipment.  A participating agency must also attach supporting documentation along  with the request form—including price quotes, a description of the items,  and intended use. Purchases up to $2,500 are approved by the DCE/SP  coordinator, while purchases greater than $2,500, or 10 percent or more  of an agency’s obligated funds, also require approval from the DEA  Special Agent in Charge in the applicable DEA field division, who then  passes the request along to DEA headquarters officials for final approval.

Conducts on-site observations. DEA headquarters officials told us that,  as part of their oversight for fiscal year 2017, they conducted on-site  observations of participating agencies in seven states at training events,  eradication operations, and participating agencies’ facilities. DEA  headquarters officials said that they selected the site visit locations based  on participating agencies’ funding levels and input from DEA field officials,  among other factors. According to these officials, site visits allowed DEA  to observe participating agencies’ equipment and compare it with  documentation on pre-approved equipment purchases and reported  expenditures.

DEA was unable to provide information about the location or results of  site visits prior to fiscal year 2017 due to both a lack of documentation  and recent personnel turnover. However, DEA began documenting the  location and results of site visits for fiscal year 2017. According to  officials, the site visits did not reveal instances of misuse of funds in fiscal  year 2017. Officials noted that documenting site visits is an important  practice that will help inform the program’s plans for future site visits, and  could help DEA identify best practices for marijuana enforcement to share  with participating agencies.

In addition, some DCE/SP coordinators we spoke with said that on-site  observations help them to oversee participating agencies’ expenditure of  program funds in the field. For example, one DCE/SP coordinator said  that he has daily on-site contact with participating agencies, and that  although he had not observed any misuse of funds, his on-site presence  would allow him to detect misuse if it were to occur.

Reviews information on program expenditures. DEA’s DCE/SP  Handbook requires participating agencies to submit cumulative quarterly  expenditure reports specifying how much the agency expended in each of  the allowable expense categories, such as overtime, aviation support,  and equipment. DEA regional contractors are required to review  quarterly expenditure reports, and sign and submit the reports to  headquarters for further review. Headquarters officials told us that they  may ask participating agencies to clarify reported expenditures, and DEA  may withhold funding if necessary until any issues are resolved. DEA also  requires participating agencies to provide supporting documentation, such  as receipts, for certain expenses claimed in the end-of-year quarterly  expenditure reports.

DEA Does Not Consistently Collect Supporting Documentation for Participating Agencies’ Reported Expenditures

Notwithstanding these efforts to oversee participating agencies’  expenditure of DCE/SP funds, DEA does not consistently collect  supporting documentation from participating agencies regarding their  reported DCE/SP expenditures. As noted above, participating agencies  are required to submit a copy of a receipt or other supporting  documentation for certain expense claimed in the end-of-year quarterly  expenditure reports, and regional contractors are responsible for  collecting this information. However, the DEA regional contractors we  spoke with had differing understandings of DEA’s requirement regarding  the collection of information on DCE/SP expenditures, and indicated to us  that they are collecting varying levels of supporting documentation. For  example,

One regional contractor told us that DEA does not specify the  completeness of supporting documentation that regional contractors  are required to collect. Nonetheless, he still collects supporting  documentation for all expenses, which in some cases may consist of  200 pages for a single quarterly expenditure report.

Another regional contractor told us that he is required to collect  quarterly expenditure reports, and participating agencies are required  to maintain supporting documentation internally. He stated that the  completeness of supporting documentation he collects varies by  participating agency within his region. For example, one participating  state agency in his region submits supporting documentation to DEA  for pre-approved equipment purchases only, but maintains supporting  documentation for other expenditures internally as required. In  contrast, he explained, other participating agencies in his region  provide supporting documentation for all expenditures, including  aviation support and overtime.

A third regional contractor said the only clear requirement DEA has  regarding the collection of information on program expenditures is that  regional contractors must collect supporting documentation for large  equipment expenditures. However, he still collects supporting  documentation for all expenditures, including overtime.

A fourth regional contractor told us that he is only required to collect  supporting documentation for equipment, material, supply, and  clothing expenditures. Accordingly, he collects supporting  documentation for these expenditures from all participating agencies  in his region. Some participating agencies in his region provide  supporting documentation for all their expenditures, including aviation  support and overtime.

Officials in headquarters told us that although they were not fully aware of  these varying practices for collecting supporting documentation, they had  confidence that participating agencies were maintaining documentation  internally as required. Moreover, DEA headquarters officials told us that  they expect regional contractors to collect supporting documentation for  aviation support and overtime expenses when participating agencies  submit their end-of-year quarterly expenditure report. However, it is our  assessment that this expectation differs from DEA’s written requirement  because the requirement does not include supporting documentation for  overtime expenses.

Based on the results of our audit work, DEA headquarters officials said  that they had taken initial steps to address this issue. In particular,  officials said that they plan to convene a working group to discuss a  potential update to DEA’s requirements for the collection of supporting  documentation after the eradication season in 2018. In addition, officials  said they had met with regional contractors to discuss potential solutions  to address this issue. However, DEA headquarters officials could not  provide us with a plan for this effort. Standards for project management  call for developing a plan with specific actions and time frames. By  developing and implementing such a plan to ensure that regional  contractors are implementing DEA’s requirement for collecting supporting  documentation in the intended manner, DEA could have greater  assurance that program funds are being expended appropriately.

DEA Collects and Uses Information on Program Activities to Help Manage DCE/SP, but Should Strengthen Data Reliability, Clearly Document Goals, and Establish Measures

DEA Collects and Uses Information on Number of Plants Eradicated and Other Program Activities to Help Manage DCE/SP

DEA collects information from participating agencies and DEA field  officials on their marijuana eradication and suppression activities to help  manage DCE/SP, such as the number of marijuana plants eradicated,  pounds of processed marijuana seized, and number of arrests made. For  example, according to DEA’s DCE/SP statistical reports, over 4 million  illegal domestic marijuana plants, on average, were eradicated annually  from 2015 through fiscal year 2017. Participating agencies are required  to report information on their marijuana eradication and suppression  activities to DEA. DEA also collects information on marijuana eradication  and suppression activities its officials conduct in the field. For example,  DEA field officials may unilaterally conduct eradication and suppression  activities or provide support to other law enforcement agencies that do  not receive program funding (nonparticipating agencies) on marijuana  enforcement efforts, and report information on these activities.

According to DEA documents and headquarters officials, DEA uses this  information to help manage the program in a variety of ways. Specifically,  DEA uses the information to develop and maintain a national assessment  of illegal domestic marijuana cultivation; inform the scope and nature of  program activities for future years; support the program’s funding request  and determine funding levels for participating agencies; and assess  performance on an agency-wide objective related to dismantling drug  trafficking organizations. DEA also reports this information on DCE/SP’s  public website.

Participating Agencies’ Practices for Reporting Some of Their Marijuana Eradication and Suppression Activities Differ from DEA Guidance

We found that participating agencies have practices for reporting  information on some of their marijuana eradication and suppression  activities that differ from DEA’s written guidance. Moreover, we found that  stakeholders at all levels—participating agencies as well as DEA field and  headquarters officials—had varying understandings of what participating  agencies are required to report to DEA for DCE/SP. As a result, the  information DEA collects is not fully reliable for the purpose of assessing  program performance.

According to DEA guidance, participating agencies are required to report  information—such as the number of marijuana plants eradicated—only  from eradication and suppression activities funded by DCE/SP. However,  among the six states we contacted, officials from participating agencies in  four states and a DCE/SP coordinator from a fifth state told us that they  also include information on activities from nonparticipating agencies in the  information reported to DEA. As a result of this broadening of  information being reported, DEA does not have a fully accurate  representation of the activities being performed by agencies receiving  DCE/SP funding. Officials from these five states told us that they  included this information to provide DEA with a more comprehensive  assessment of the illegal domestic marijuana cultivation issue in their  area. DEA headquarters officials were not aware of this reporting  practice. Moreover, officials said that participating agencies should only  report information resulting from their DCE/SP-funded operations, which  may include results from support they provide to nonparticipating  agencies. For example, if a participating agency provides support to a  nonparticipating agency in the form of aircraft surveillance to help identify  illegal grow sites, or additional officers to assist with an eradication  operation, the participating agency should report the results from those  activities to DEA. However, these expectations are not defined in DEA  guidance.

DEA guidance also states that participating agencies should make every  effort to not report eradication and suppression information resulting from  interdiction activities, which are not considered DCE/SP-funded  operations. For example, marijuana seized by a participating agency  during a routine traffic stop—a type of interdiction activity—should not be  reported. However, we found that participating agencies had varying  understandings of whether or not to report this information to DEA. As a  result, information DEA collects from these officials is not consistent.  Specifically, we identified three different practices that participating  agencies followed to report eradication and suppression information  resulting from routine traffic stops:  report marijuana seized during routine traffic stops only if the  marijuana can be linked back to a domestic source;  report all marijuana seized during routine traffic stops irrespective of  source; and do not report any marijuana seized during routine traffic stops.

Further, we found that DEA field officials responsible for providing  guidance to participating agencies had varying understandings of whether  participating agencies should report information on marijuana seized  during routine traffic stops to DEA. For example, two DCE/SP  coordinators told us that information resulting from routine traffic stops  should not be reported because DCE/SP is focused on the eradication of  illegal marijuana grow sites. However, 3 of the 4 DEA regional contractors  we spoke with said that participating agencies should report information  resulting from routine traffic stops only if the marijuana seized can be  tracked to a domestic source.

DEA headquarters officials were not aware of these differing reporting  practices and varying understandings. Headquarters officials told us that  they expect participating agencies to report information on marijuana  seized during routine traffic stops only if the marijuana can be linked to a  domestic source. However, our assessment is that this expectation is not  consistent with DEA’s written guidance. Officials explained that  interdiction activities, such as routine traffic stops, are relevant to  marijuana suppression, especially in light of recent changes in illegal  marijuana cultivation and trafficking trends. For example, according to  DEA officials, Kansas—a state without marijuana legalization—has  recently experienced a decrease in the number of illegal outdoor  marijuana grow sites in conjunction with an increase in the amount of  illegal domestic marijuana being trafficked into the state from Colorado— a state with recreational and medical marijuana legalization.

Standards for Internal Control in the Federal Government state that  management should use quality information—including accurate and  consistent information—to achieve the entity’s objectives. Federal  standards for internal control also state that management should  communicate the necessary quality information internally and externally  to achieve the entity’s objectives. Based on the results of our audit work,  DEA headquarters officials said that they had taken initial steps and have  additional plans to update DEA’s written guidance. For example, officials  told us that they plan to convene a working group to help address this  issue after the eradication season in 2018. This working group will,  according to officials, elicit input from DEA headquarters, regional  contractors and DCE/SP coordinators in the field, as well as participating  agencies. However, DEA headquarters officials could not provide us with  any details or documentation of its initial steps and additional plans to  address this issue. Clarifying the guidance and communicating it to  participating agencies and DEA field officials—for example, by sharing  the updated guidance with them, discussing reporting practices during its  national strategic meeting, or including the guidance in DEA information  systems—would help ensure the consistent application of the guidance,  and as a result, improve the reliability of the information DEA collects.  The improved information could help DEA assess program performance  and manage the program more effectively.

DEA Has Not Clearly Documented All of Its Program Goals, and Does Not Have Measures to Assess Performance

Although DEA collects and uses information on DCE/SP activities to help  manage the program, it has not clearly documented all of its program  goals and has not developed performance measures to assess whether  the agency is making progress towards achieving its goals.

We did not find explicitly-labeled program goals in the DCE/SP  Handbook, DEA budget justification documents, and DEA’s webpage  which we reviewed. However, we found the following four statements  which appeared to reflect program goals:  1.  halt the spread of marijuana cultivation in the United States;  2.  eradicate marijuana that is illegally cultivated by a person or drug  trafficking organization;  3.  disrupt and dismantle drug trafficking organizations and deprive these  organizations of significant revenue streams; and  4.  deter the illegal cultivation of marijuana through arrest, prosecution,  incarceration of cultivators and seizure of drug-derived assets, and by  making cultivation untenable due to increased law enforcement  activities.

DEA headquarters officials confirmed to us that the statements above  reflected the goals of the program. However, they also described the  following additional goals that are not explicitly defined in agency or  program documentation: maximize the number of law enforcement agencies that participate in  improve safety during operations through increased access to training  and eradication schools; and  share information on illegal marijuana cultivation among law  enforcement agencies.

Headquarters officials explained that because they are still relatively new  to the program—having arrived in 2016—they had not yet documented  these goals. Officials said they plan to document the program goals in the  future, but did not provide specific time frames for doing so. Standards for  Internal Control in the Federal Government state that management  should define objectives clearly to enable identification of risks and define  risk tolerances. Moreover, objectives are to be specific and measurable  so they can be understood at all levels of the entity and that performance  towards achieving those objectives can be assessed.

Further, DEA has not developed performance measures with baselines,  measurable targets, and linkage to program goals—several important  attributes we have previously identified that performance measures  should include if they are to be effective in monitoring progress and  determining how well programs are achieving their goals. Baselines  enable decision makers to assess the program’s performance over time.  Identifying and reporting deviations from the baseline as a program  proceeds provides valuable oversight by identifying areas of program risk  and their causes to decision makers. Measurable targets help decision  makers conduct assessments of whether program goals were achieved.  Lastly, linkages between an organization’s goals and performance  measures create a line of sight so that everyone understands how  program activities contribute to the organization’s goals.

DEA headquarters officials agreed that developing baselines to monitor  trends in program performance over time would be useful for program  management. However, officials said that setting measurable targets  would be challenging because of factors outside of DEA’s control that  may affect eradication efforts, including extreme weather events and  changes in illegal marijuana cultivation and trafficking trends. However,  DEA currently has performance measures with measurable targets for  some of its drug enforcement-related programs and activities. For  example, DEA has a performance measure with a measurable target for  its agency-wide objective related to dismantling drug trafficking  organizations—maximizing the monetary value of currency, property, and  drugs seized. This performance measure reflects the outcomes of  multiple activities across DEA, including DCE/SP. Further, while we agree  that developing drug enforcement-related performance measures with  measurable targets may be difficult, targets can help DEA evaluate past  performance and make informed decisions about future operations,  including allocating resources or developing strategies for the purpose of  maintaining or improving performance.

GPRAMA directs agencies to develop and document goals, as well as  performance measures to assess progress towards their goals. While  those requirements are applicable to the department or agency level  (e.g., DOJ), we have previously reported that they can serve as leading  practices at other organizational levels, including the program, project, or  activity level. Agencies can use performance measurement to make  various types of management decisions to improve programs and results,  such as developing strategies and allocating resources, including  identifying problems and taking corrective action when appropriate.  Clearly documenting all program goals and developing performance  measures with baselines, measurable targets, and linkage to program  goals could provide DEA with the information it needs to assess progress  and make informed decisions about current and future operations.

Despite states’ legalization of marijuana for medical or recreational  purposes, illegal marijuana cultivation continues to occur. As the nation’s  primary federal law enforcement agency for investigating and enforcing  potential violations of controlled substance laws and regulations, DEA  aims to halt the spread of illegal domestic marijuana cultivation. To  accomplish this goal, DEA has provided financial assistance through  DCE/SP to support participating state and local law enforcement  agencies’ efforts to curb illegal domestic marijuana cultivation for almost  four decades. These participating agencies have collectively eradicated  several million illegal domestic marijuana plants annually in recent years.

Nonetheless, DEA management can take further actions to improve its  oversight of various aspects of the program. Specifically, by developing  and implementing a plan with specific actions and time frames to ensure  that DEA field staff are consistently implementing the agency’s  requirements for collecting information on program expenditures, DEA will  be better positioned to ensure that program funds are being expended  appropriately. Additionally, by clarifying its guidance on the eradication  and suppression activities participating agencies are required to report— and communicating the guidance to participating agencies and relevant  DEA officials—DEA will have more reliable information to assess program  performance and manage the program effectively. Finally, by clearly  documenting program goals for DCE/SP and developing related  performance measures with baselines, measurable targets, and linkage  to those goals, DEA will be better able to assess the program’s  performance over time and, if necessary, redirect resources to effective  eradication and suppression efforts. Moving in this direction could help  program investments achieve even greater results.

We are making the following four recommendations to DEA:

The DEA Administrator should develop and implement a plan with  specific actions and time frames to ensure that regional contractors  are implementing DEA’s requirement for collecting documentation  supporting participating agencies’ DCE/SP program expenditures in  the intended manner. (Recommendation 1)

The DEA Administrator should clarify DCE/SP guidance on the  eradication and suppression activities that participating agencies are  required to report, and communicate it to participating agencies and  DEA officials responsible for implementing DCE/SP.  (Recommendation 2)

The DEA Administrator should clearly document all DCE/SP program  goals. (Recommendation 3)

The DEA Administrator should develop DCE/SP performance  measures with baselines, targets, and linkage to program goals.  (Recommendation 4)

We provided a draft of this report to DOJ, including DEA, and USDA for  review and comment. In its comments, reproduced in appendix II, DEA  concurred with our recommendations and described planned actions to  address them. DEA also provided technical comments, which we  incorporated as appropriate. USDA told us that they had no comments on  the draft report.

In response to our first recommendation that DEA develop and implement  a plan with specific actions and time frames to ensure that regional  contractors are implementing DEA's requirement for collecting  documentation supporting participating agencies' DCE/SP program  expenditures in the intended manner, DEA concurred and stated that it  will take measures to ensure that contract personnel are documenting  and reporting expenditures in accordance with policy. Furthermore, DEA  reported plans to update its DCE/SP Handbook by the end of the second  quarter of fiscal year 2019 to provide uniform policy guidance on this  matter. These actions, if implemented as described, should address the  intent of our recommendation.

DEA also concurred with our second recommendation that DEA clarify  DCE/SP guidance on the eradication and suppression activities that  participating agencies are required to report, and communicate it to  participating agencies and DEA officials responsible for implementing  DCE/SP. In its response, DEA reported plans to update the DCE/SP  Handbook by the end of the second quarter of fiscal year 2019 so that the  handbook clearly articulates the requirements and methods for reporting  eradication and suppression data. Furthermore, DEA reported plans to  conduct site visits and conference calls in the third and fourth quarters of  fiscal year 2019 to communicate the requirements. These actions, if  implemented as described, should address the intent of our  recommendation.

DEA concurred with our third recommendation that DEA clearly document  all DCE/SP program goals. In its response, DEA reported plans to amend  and document program goals for fiscal year 2019 and ensure that they  are explicitly included in the DCE/SP Handbook and budget submissions.  These actions, if implemented as described, should address the intent of  our recommendation.

DEA concurred with our fourth recommendation that DEA develop  DCE/SP performance measures with baselines, targets, and linkage to  program goals. In its response, DEA stated that it had identified  performance measures for DCE/SP and convened an ongoing working  group of subject matter experts to select a subset of these performance  measures in order to better inform DCE/SP processes and management  decision-making. These actions, if implemented as described, should  address the intent of our recommendation.

We are sending copies of this report to the appropriate congressional  committees, the Attorney General, the DEA Administrator and the  Secretary of Agriculture, and other interested parties. In addition, the  report is available at no charge on the GAO website at  http://www.gao.gov.

If you or your staff have any questions about this report, please contact  me at (202) 512-8777 or goodwing@gao.gov. Contact points for our  Offices of Congressional Relations and Public Affairs may be found on  the last page of this report. GAO staff who made key contributions to this  report are listed in appendix III.

Appendix I: Domestic Cannabis Eradication/Suppression Program Funds Obligated to and Expended by Participating Agencies, 2015 through Fiscal Year 2018

From 2015 through fiscal year 2018, the Drug Enforcement  Administration (DEA) obligated about $56 million through its Domestic  Cannabis Eradication/Suppression Program (DCE/SP) to state and local  law enforcement agencies (participating agencies) in 43 states and the  U.S. Virgin Islands to support their marijuana eradication and suppression  activities. See table 2.

In the table below, we also provide the status of marijuana legalization  under state or territorial law, as of July 2018. Specifically, these  categories include: recreational and medical legalization (R&M); medical  legalization only (M); cannabidiol product access laws only (CBD); and no  legalization (No).

Appendix II: Comments from the Department of Justice

Appendix III: GAO Contact and Staff Acknowledgments

In addition to the contact named above, Brett Fallavollita (Assistant  Director), David Bieler (Analyst-in-Charge), Matthew T. Lowney, Billy  Commons, Pamela Davidson, Steve Gaty, Eric Hauswirth, Benjamin  Licht, Kimberly McGatlin, and Adam Vogt made key contributions to this  report.

The Drug Enforcement Administration has recently obligated, on average, over $17 million a year to help state and local agencies eradicate millions of illegal marijuana plants. Agencies in states where marijuana is legal also received funds because illegal growing can occur on national forests or trespassed farm lands.

Much of these funds were used for helicopter support and overtime, reflecting long days in remote areas.

We found that agencies inconsistently reported data to DEA, making it difficult for DEA to reliably assess program performance.

We recommended that DEA improve its oversight of program performance and spending.


Immigration: Progress and Challenges in the Management of Immigration Courts and Alternatives to Detention Program

The Department of Justice's EOIR is responsible for conducting immigration court proceedings, appellate reviews, and administrative hearings to fairly, expeditiously, and uniformly administer and interpret U.S. immigration laws. The Department of Homeland Security's ICE manages the U.S. immigration detention system, which houses foreign nationals, including families, whose immigration cases are pending or who have been ordered removed from the country. ICE implemented the ATD program in 2004 to be a cost-effective alternative to detention that uses case management and electronic monitoring.

This statement addresses (1) EOIR's caseload, including the backlog, and how EOIR manages immigration court operations, including hiring, workforce planning, and technology use; and (2) participation in and the cost of the ATD program and the extent to which ICE has measured the performance of the ATD program. This statement is based on two reports and a testimony GAO issued from November 2014 through April 2018, as well as actions agencies have taken, as of September 2018, to address resulting recommendations. For the previous reports and testimony, GAO analyzed EOIR and ICE data, reviewed documentation, and interviewed officials.

In June 2017, GAO reported that the Executive Office for Immigration Review's (EOIR) immigration court case backlog—cases pending from previous years still open at the start of a new fiscal year—more than doubled from fiscal years 2006 through 2015 (see figure), primarily due to declining cases completed per year.

GAO also reported in June 2017 that EOIR could take several actions to address management challenges related to hiring, workforce planning, and technology utilization, among other things. For example, EOIR did not have efficient practices for hiring immigration judges. EOIR data showed that on average from February 2014 through August 2016, EOIR took more than 21 months to hire a judge. GAO also found that EOIR was not aware of the factors most affecting the length of its hiring process. GAO recommended that EOIR assess its hiring process to identify efficiency opportunities. As of January 2018, EOIR had made progress in increasing its number of judges but remained below its fiscal year 2017 authorized level. To better ensure that it accurately and completely identifies opportunities for efficiency, EOIR needs to assess its hiring process.

In November 2014, GAO reported that the number of aliens who participated in U.S. Immigration and Customs Enforcement's (ICE) Alternatives to Detention (ATD) program increased from 32,065 in fiscal year 2011 to 40,864 in fiscal year 2013. GAO also found that the average daily cost of the program—$10.55—was significantly less than the average daily cost of detention—$158—in fiscal year 2013. Additionally, ICE established two performance measures to assess the ATD program's effectiveness, but limitations in data collection hindered ICE's ability to assess program performance. GAO recommended that ICE collect and report on additional court appearance data to improve ATD program performance assessment, and ICE implemented the recommendation.

GAO previously made recommendations to EOIR to improve its hiring process, among other things, and to ICE to improve ATD performance assessment. EOIR and ICE generally agreed and implemented or reported actions planned to address the recommendations.

I am pleased to be here today to discuss our work on the immigration  court system and the Alternatives to Detention (ATD) program. Each  year, the Department of Homeland Security (DHS) initiates hundreds of  thousands of cases with the U.S. immigration court system to decide  whether respondents—foreign nationals charged on statutory grounds of  inadmissibility or deportability—are removable as charged; and, if so,  should be ordered removed from the United States or granted any  requested relief or protection from removal and permitted to lawfully  remain in the country. Within DHS, U.S. Immigration and Customs  Enforcement (ICE) operated on a budget of nearly $3 billion in fiscal year  2017 to manage the U.S. immigration detention system, which houses  foreign nationals, including families, whose immigration cases are  pending or who have been ordered removed from the country.

With regards to the immigration court system, the Department of Justice’s  (DOJ) Executive Office for Immigration Review (EOIR) is responsible for  conducting immigration court proceedings, appellate reviews, and  administrative hearings to fairly, expeditiously, and uniformly administer  and interpret U.S. immigration laws and regulations. Within EOIR,  immigration judges at 58 immigration courts located nationwide preside  over removal proceedings for respondents detained by ICE or released  pending the outcome of their proceedings, to determine their removability  and eligibility for any relief being sought. In addition to removal  proceedings, immigration judges also conduct certain other types of  hearings, such as to review negative credible fear determinations and ICE  custody and bond decisions, as well as make decisions on motions, such  as motions to reopen cases or reconsider prior decisions. Members of  EOIR’s Board of Immigration Appeals hear and issue decisions regarding  appeals of immigration judges’ decisions and certain DHS decisions.

With regards to the ATD program, ICE is responsible for the oversight of  foreign nationals who, if not detained in a detention facility, were released  into the community. In November 2014, we reported that ICE uses one or  more release options when it determines that a foreign national is not to  be detained in ICE’s custody—including bond, order of recognizance,  order of supervision, parole, or on condition of participation in the ATD  program. ICE implemented the ATD program in 2004 to be a cost- effective alternative to detention that uses case management and  electronic monitoring to ensure adult foreign nationals released into the  community comply with their release conditions—including requirements  to appear at immigration court hearings—and comply with final orders of  removal from the United States.

The ATD program seeks to provide an enhanced monitoring option for  those foreign nationals for whom ICE, or an immigration judge, has  determined that detention is neither mandated nor appropriate, yet may  need a higher level of supervision than that provided by the less  restrictive release conditions, such as being released on bond. Foreign  nationals enrolled in the ATD program may be subject to various types of  supervision, including office visits, unscheduled home visits, and  electronic monitoring—Global Positioning System (GPS) equipment or a  telephonic reporting system. ICE generally makes all decisions about the  appropriate level of supervision and type of technology with which a  foreign national should be monitored. However, a private contractor  carries out the case management for foreign nationals enrolled in one of  the two components of the ATD program that were available at the time of  our November 2014 report.

My statement today addresses: (1) EOIR’s caseload, including the  backlog, and how EOIR manages immigration court operations, including  workforce planning, hiring, and technology utilization; and (2) participation  in and the cost of the ATD program and the extent to which ICE has  measured the performance of the ATD program. This statement is based  on two reports and one testimony that we issued between November  2014 and April 2018, as well as actions agencies have taken, as of  September 2018, to address our recommendations from the reports. To  perform the work for our previous reports and testimony on the  immigration courts, we analyzed data on immigration case receipts and  completions from EOIR’s case management system for fiscal years 2006  through 2015; examined documentation, such as contracts for workforce  planning services; and interviewed EOIR and DHS officials from  headquarters and six immigration courts. To perform the work for our  previous report on ATD, we reviewed agency documents, analyzed ATD  program data from fiscal years 2011 through 2013, and interviewed ICE  officials responsible for the ATD program. More detailed information  about our scope and methodology can be found in our reports and  testimony. To determine actions the agencies have taken to address  recommendations we made in these reports as of September 2018, we  collected documentation and testimony from ICE and EOIR officials.

The work upon which this testimony is based was conducted in  accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.

The Immigration Court Backlog Grew and EOIR Has Faced Long-Standing Management Challenges

The Immigration Courts’ Caseload and Case Backlog Grew As Immigration Courts Completed Fewer Cases

We reported in June 2017 that our analysis of EOIR’s annual immigration  court system caseload—the number of open cases before the court  during a single fiscal year—showed that it grew 44 percent from fiscal  years 2006 through 2015 due to an increase in the case backlog, while  case receipts remained steady and the immigration courts completed  fewer cases. For the purpose of our analysis, the immigration courts’  annual caseload was comprised of three parts: (1) the number of new  cases filed by DHS; (2) the number of other case receipts resulting from  remands from the Board of Immigration Appeals and motions to reopen  cases, reconsider prior decisions, or recalendar proceedings; and (3) the  case backlog—the number of cases pending from previous years that  remain open at the start of a new fiscal year. During this 10-year period,  the immigration courts’ overall annual caseload grew from approximately  517,000 cases in fiscal year 2006 to about 747,000 cases in fiscal year  2015, as shown in figure 1.

We further reported in June 2017 that, according to our analysis, total  case receipts remained about the same in fiscal years 2006 and 2015 but  fluctuated over the 10-year period, with new case receipts generally  decreasing and other case receipts generally increasing. Over the same  period, EOIR’s case backlog more than doubled. Specifically, immigration  courts had a backlog of about 212,000 cases pending at the start of fiscal  year 2006 and the median pending time for those cases was 198 days.  By the beginning of fiscal year 2009, the case backlog declined slightly to  208,000 cases. From fiscal years 2010 through 2015, the case backlog  grew an average of 38,000 cases per year. At the start of fiscal year  2015, immigration courts had a backlog of about 437,000 cases pending  and the median pending time for those cases was 404 days.

The increase in the immigration court case backlog occurred as  immigration courts completed fewer cases annually. In particular, the  number of immigration court cases completed annually declined by 31  percent from fiscal year 2006 to fiscal year 2015—from about 287,000  cases completed in fiscal year 2006 to about 199,000 completed in 2015.  According to our analysis, while the number of cases completed annually  declined, the number of immigration judges increased between fiscal year  2006 and fiscal year 2015. This resulted in a lower number of case  completions per immigration judge at the end of the 10-year period.

Additionally, we reported in June 2017 that initial immigration court case  completion time increased more than fivefold between fiscal year 2006  and fiscal year 2015. Overall, the median initial completion time for  cases increased from 43 days in fiscal year 2006 to 286 days in fiscal  year 2015. However, case completion times varied by case type and  detention status. For example, the median number of days to complete a  removal case, which comprised 97 percent of EOIR’s caseload for this  time period, increased by 700 percent from 42 days in fiscal year 2006 to  336 days in fiscal year 2015. However, the median length of time it took  to complete a credible fear case, which comprised less than 1 percent of  EOIR’s caseload during this period, took 5 days to complete in fiscal year  2006 as well as in fiscal year 2015. Initial case completion times for both  detained and non-detained respondents more than quadrupled from fiscal  year 2006 through fiscal year 2015. The median case completion time  for non-detained cases, which comprised 79 percent of EOIR’s caseload  from fiscal year 2006 to fiscal year 2015, grew more than fivefold from 96  days to 535 days during this period. Similarly, the median number of days  to complete a detained case, which judges are to prioritize on their  dockets, quadrupled over the 10-year period, increasing from 7 days in  fiscal year 2006 to 28 days in fiscal year 2015.

EOIR officials, immigration court staff, DHS attorneys, and other experts  and stakeholders we interviewed provided various potential reasons why  the case backlog may have increased and case completion times slowed  in recent years. These reasons included: a lack of court personnel, such as immigration judges, legal clerks,  and other support staff;  insufficient funding to appropriately staff the immigration courts; a surge in new unaccompanied children cases, beginning in 2014,  which may take longer to adjudicate than other types of cases;   frequent use of continuances—temporary case adjournments until  a different day or time—by immigration judges; and   issues with the availability and quality of foreign language  translation.

EOIR Has Initiated Actions to Improve Its Management of the Immigration Courts, but Has Faced Long-Standing Challenges

We also reported in June 2017 that EOIR has faced long-standing  management and operational challenges. In particular, we identified  challenges related to EOIR’s workforce planning, hiring, and technology  utilization, among other things. We recommended actions to improve  EOIR’s management in these areas. EOIR generally concurred and has  initiated actions to address our recommendations. However, EOIR needs  to take additional steps to fully implement our recommendations to help  strengthen the agency’s management and reduce the case backlog.

Workforce planning. In June 2017, we reported that EOIR estimated  staffing needs using an informal approach that did not account for long- term staffing needs, reflect EOIR’s performance goals, or account for  differences in the complexity of court cases. For example, in developing  its staffing estimate, EOIR did not calculate staffing needs beyond the  next fiscal year or take into account resources needed to achieve the  agency’s case completion goals, which establish target time frames in  which immigration judges are to complete a specific percentage of certain  types of cases. Furthermore, we found that, according to EOIR data,  approximately 39 percent of all immigration judges were eligible to retire  as of June 2017, but EOIR had not systematically accounted for these  impending retirements in its staffing estimate.

At the time of our review, EOIR had begun to take steps to account for  long-term staffing needs, such as by initiating a workforce planning report  and a study on the time it takes court staff to complete key activities.  However, we found that these efforts did not align with key principles of  strategic workforce planning that would help EOIR better address current  and future staffing needs. EOIR officials also stated that the agency had  begun to develop a strategic plan for fiscal years 2018 through 2023 that  could address its human capital needs. We recommended that EOIR  develop and implement a strategic workforce plan that addresses key  principles of strategic workforce planning.

EOIR agreed with our recommendation. In February 2018, EOIR officials  told us that they had established a committee and working group to  examine the agency’s workforce needs and would include workforce  planning as a key component in EOIR’s forthcoming strategic plan.  Specifically, EOIR officials stated that the agency had established the  Immigration Court Staffing Committee in April 2017 to examine how to  best leverage its existing judicial and court staff workload model to  address its short- and long-term staffing needs, assess the critical skills  and competencies needed to achieve future programmatic results, and  develop strategies to address human capital gaps, among other things. In  February 2018, EOIR officials stated that the agency replaced this  committee, which had completed its work, with a smaller working group of  human resource employees charged with addressing the agency’s  strategic workforce planning. These are positive steps, but to fully  address our recommendation, EOIR needs to continue to develop, and  then implement a strategic workforce plan that: (1) addresses the  agency’s short- and long-term staffing needs; (2) identifies the critical  skills and competencies needed to achieve future programmatic results;  and (3) includes strategies to address human capital gaps. Once this  strategic workforce plan is completed, EOIR needs to monitor and  evaluate the agency’s progress toward its human capital goals.

Hiring. Additionally, in our June 2017 report, we found that EOIR did not  have efficient practices for hiring new immigration judges, which has  contributed to immigration judges being staffed below authorized levels  and to staffing shortfalls. For example, in fiscal year 2016, EOIR received  an appropriation supporting 374 immigration judge positions but had 289  judges on board at the end of the fiscal year. EOIR officials attributed  these gaps to delays in the hiring process. Our analysis of EOIR hiring  data supported their conclusion. Specifically, we found that from February  2014 through August 2016, EOIR took an average of 647 days to hire an  immigration judge—more than 21 months. As a result, we recommended  that EOIR (1) assess the immigration judge hiring process to identify  opportunities for efficiency; (2) use the assessment results to develop a  hiring strategy that targets short- and long-term human capital needs; and  (3) implement any corrective actions related to the hiring process  resulting from this assessment.

In response to our report, EOIR stated that it concurred with our  recommendation and was implementing a new hiring plan as announced  by the Attorney General in April 2017 intended to streamline hiring.  Among other things, EOIR stated that the new hiring plan sets clear  deadlines for assessing applicants moving through different stages of the  process and for making decisions on advancing applicants to the next  stage, and allows for temporary appointments for selected judges  pending full background investigations. In February 2018, EOIR indicated  to us that it had begun to use the process outlined in its hiring plan to fill  judge vacancies. The Attorney General also announced in April 2017 that  the agency would commit to hire an additional 50 judges in 2018 and 75  additional judges in 2019. In January 2018, EOIR officials told us that the  agency had a total of 330 immigration judges, an increase of 41 judges  since September 2016. However, EOIR remained below its fiscal year  2017 authorized level of 384 immigration judges based on funding  provided in fiscal years 2016 and 2017. Additionally, the Consolidated  Appropriations Act, 2018 provided funding for EOIR to hire at least 100  additional immigration judge teams, including judges and supporting staff,  with a goal of fielding 484 immigration judge teams nationwide by 2019.

In September 2018, EOIR reported it had a total of 351 immigration  judges and was continuing to hire additional judges.

Hiring additional judges is a positive step; however, EOIR has not  assessed its hiring process to identify opportunities for efficiency, and we  found in our June 2017 report that EOIR was not aware of the factors  most affecting its hiring process. For example, we reported that EOIR  officials attributed the length of the hiring process to delays in the Federal  Bureau of Investigation background check process, which is largely  outside of EOIR’s control. However, our analysis found that while  background checks accounted for an average of 41 days from fiscal year  2015 through August 2016, other processes within EOIR’s control  accounted for a greater share of the total hiring time. For example, for the  same period our analysis found that an average of 135 days elapsed  between the date EOIR posted a vacancy announcement and the date  EOIR officials began working to fill the vacancy. By assessing its hiring  process, EOIR could better ensure that it is accurately and completely  identifying opportunities for efficiency. To fully address our  recommendation, EOIR will need to continue to improve its hiring process  by (1) assessing the prior hiring process to identify opportunities for  efficiency; (2) developing a hiring strategy targeting short- and long-term  human capital needs; and (3) implementing corrective actions in response  to the results of its assessment of the hiring process.

Technology utilization. In June 2017 we also reported on EOIR’s  technology utilization, including the agency’s oversight of the ongoing  development of a comprehensive electronic-filing (e-filing) capability—a  means of transmitting documents and other information to immigration  courts through an electronic medium, rather than on paper. EOIR  identified the implementation of an e-filing system as a goal in 2001, but  had not, as of September 2018, fully implemented this system. In 2001,  EOIR issued an executive staff briefing for an e-filing system that stated  that only through a fully electronic case management and filing system  would the agency be able to accomplish its goals. This briefing also cited  several benefits of an e-filing system, including, among other things,  reducing the data entry, filing, and other administrative tasks associated  with processing paper case files; and providing the ability to file court  documents from private home and office computers.

As we reported in June 2017, EOIR initiated a comprehensive e-filing  effort in 2016—the EOIR Court and Appeals System (ECAS)—for which  EOIR had documented policies and procedures governing how its primary  ECAS oversight body—the ECAS Executive Committee—would oversee  ECAS through the development of a proposed ECAS solution. However,  we found that EOIR had not yet designated an entity to oversee ECAS  after selection of a proposed solution during critical stages of its  development and implementation. We recommended that in order to help  ensure EOIR meets its cost and schedule expectations for ECAS, the  agency identify and establish the appropriate entity to oversee ECAS  through full implementation. EOIR concurred and stated that it had  selected and convened the EOIR Investment Review Board to serve as  the ECAS oversight body with the EOIR Office of Information Technology  directly responsible for the management of the ECAS program.

EOIR officials told us in February 2018 that the board convened in  October 2017 and January 2018 to discuss, among other things, the  ECAS program. However, as we reported in June 2017, EOIR officials  previously told us that the EOIR Investment Review Board was never  intended to oversee ECAS implementation due to the detailed nature of  this system’s implementation. As of September 2018, EOIR has not  demonstrated its selection of, or how the EOIR Investment Review Board  is to serve as the oversight body for ECAS. Additionally, we  recommended in June 2017 EOIR develop and implement a plan that is  consistent with best practices for overseeing ECAS to better position the  agency to identify and address any risks and implement ECAS in  accordance with its cost, schedule, and operational expectations. As of  September 2018, EOIR has not indicated that it has developed such a  plan.

ATD Participation Increased and Costs Less than Detention; ICE Established Program Performance Measures Participation in the ATD Program Increased and Average Daily Cost of the Program Was Lower than the Average Daily Cost of Detention

In November 2014 we reported that the number of foreign nationals who  participated in the ATD program increased from 32,065 in fiscal year  2011 to 40,864 in fiscal year 2013 in part because of increases in either  enrollments or the average length of time foreign nationals spent in one of  the program’s components. For example, during this time period, the  number of foreign nationals enrolled in the component of the program that  was run by a contractor who maintained in-person contact with the foreign  national and monitored the foreign national with either GPS equipment or  a telephonic reporting system, increased by 60 percent. In addition, the  average length of time foreign nationals spent in the other component of  the program, which offered a lower level of supervision at a lower contract  cost but still involved ICE monitoring of foreign nationals using either  telephonic reporting or GPS equipment provided by a contractor,  increased by 80 percent—from about 10 months to about 18 months. ICE  officials stated that how long a foreign national is in the ATD program  before receiving a final decision on his or her immigration proceedings  depends on how quickly EOIR can process immigration cases.

We also found in our November 2014 report that the average daily cost of  the ATD program was $10.55 in fiscal year 2013, while the average daily  cost of detention was $158. While our analyses showed that the  average daily cost of the ATD program was significantly less than the  average daily cost of detention, the length of immigration proceedings  affected the cost-effectiveness of the ATD program to varying extents  under different scenarios. As previously discussed, immigration judges  are to prioritize detained cases, and our June 2017 report found that  EOIR data showed that median case completion times for non-detained  cases were greater than for detained cases. Accordingly, the length of  immigration proceedings for foreign nationals in detention may be shorter  than those in the ATD program.

Specifically, in our November 2014 report, we conducted two analyses to  estimate when the cost of keeping foreign nationals in the ATD program  would have surpassed the cost of detaining a foreign national in a facility.  Under our first analysis, we considered the average costs of ATD and  detention and the average length of time foreign nationals in detention  spent awaiting an immigration judge’s final decision. We found that the  ATD program would have surpassed the cost of detention after a foreign  national was in the program for 1,229 days in fiscal year 2013— significantly longer than the average length of time foreign nationals spent  in the ATD program in that year (383 days). In our second analysis, we  considered the average costs of ATD and detention and the average  length of time foreign nationals spent in detention—regardless of whether  they had received a final decision from an immigration judge—since some  foreign nationals may not be in immigration proceedings or may not have  reached their final hearing before ICE released them from detention.  ICE reported that the average length of time that a foreign national was in  detention in fiscal year 2013 was 29 days. Using this average, we  calculated the average length of time foreign nationals could have stayed  in the ATD program before they surpassed the cost of detention would  have been 435 days in fiscal year 2013.

ICE Established ATD Performance Measures, and Took Actions to Ensure the Measures Monitored All Foreign Nationals Enrolled in the Program

We found in our November 2014 report that ICE established two program  performance measures to assess the ATD program’s effectiveness in (1)  ensuring foreign national compliance with court appearance requirements  and (2) ensuring removals from the United States, but limitations in data  collection hindered ICE’s ability to assess overall program performance.

Compliance with court appearances. For the component of the ATD  program managed by the contractor, data collected by the ATD contractor  from fiscal years 2011 through 2013 showed that over 99 percent of  foreign nationals with a scheduled court hearing appeared at their  scheduled court hearings while participating in the ATD program. The  court appearance rate dropped slightly to over 95 percent of foreign  nationals with a scheduled final hearing appearing at their hearing.  However, we reported that ICE did not collect similar court compliance  data for foreign nationals in the component of the ATD program that ICE  was responsible for managing—which accounted for 39 percent of the  overall ATD program in fiscal year 2013. As a result, we recommended  that ICE collect and report data on foreign national compliance with court  appearance requirements for participants in this component of the ATD  program.

As of June 2017, ICE reported that the ATD contractor was collecting  data on foreign nationals’ court appearance compliance for foreign  nationals in both components of the ATD program, and at that time, was  collecting data for approximately 88 percent of foreign nationals that were  awaiting a hearing. ICE officials stated that they did not expect that 100  percent of foreign nationals in the ATD program would be tracked for  court appearance compliance by the contractor because there may be  instances where ICE has chosen to monitor a foreign national directly,  rather than have the contractor track a foreign national’s compliance with  court appearance requirements. Officials stated that ICE officers may  decide to monitor a foreign national directly because they determined that  it is in the government’s best interest, or it was fiscally responsible when a  foreign national’s court date was far in the future and court tracking  conducted by the contractor would be costly. In July 2017, ICE reported  that they assessed whether ICE officers that directly monitor foreign  nationals in the ATD program had reliable data to determine court  appearance compliance and found no practical or appropriate way to  obtain such data without devoting a significant amount of ICE’s limited  resources. Although ICE is not collecting court appearance compliance  data for all foreign nationals in both components of the ATD program, as  of July 2017, it has met the intent of our recommendation by collecting  and reporting on all available data on the majority of foreign nationals in  both components of the ATD program.

Removals from the United States. For this program performance  measure, a removal is attributed to the ATD program if the foreign  national (1) was enrolled in ATD for at least 1 day, and (2) was removed  or had departed voluntarily from the United States in the same fiscal year,  regardless of whether the foreign national was enrolled in ATD at the time  the foreign national left the country. The ATD program met its goal for  removals in fiscal years 2012 and 2013. For example, in fiscal year  2013, ICE reported 2,901 removals of foreign nationals in the ATD  program—surpassing its goal of 2,899 removals.

ATD program performance measures provide limited information about  the foreign nationals who are terminated from the ATD program prior to  receiving the final disposition of their immigration proceedings, or who  were removed or voluntarily departed from the country. Specifically, ICE  counts a foreign national who was terminated from the program and was  subsequently removed from the United States toward the ATD removal  performance measure as long as the foreign national was in the program  during the same fiscal year he or she was removed from the country.  However, foreign nationals who were terminated from the program do not  count toward court appearance rates if they subsequently do not appear  for court. ICE officials reported that it would be challenging to determine a  foreign national’s compliance with the terms of his or her release after  termination from the ATD program given insufficient resources and the  size of the nondetained foreign national population. In accordance with  ICE guidance, staff resources are instead directed toward apprehending  and removing foreign nationals from the United States who are  considered enforcement and removal priorities.

Chairman Johnson, Ranking Member McCaskill, and Members of the  Committee, this completes my prepared statement. I would be happy to  respond to any questions you or the members of the committee may  have.

If you or your staff have any questions about this testimony, please  contact Rebecca Gambler at (202) 512-8777 or gamblerr@gao.gov.  Contact points for our Offices of Congressional Relations and Public  Affairs may be found on the last page of this statement. GAO staff who  made key contributions to this testimony are Taylor Matheson (Assistant  Director), Tracey Cross, Ashley Davis, Paul Hobart, Sasan J. “Jon” Najmi,  and Michele Fejfar. Key contributors for the previous work on which this  testimony is based are listed in each product.

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This testimony addresses our earlier work on 2 immigration topics:

The U.S. immigration court system, which considers hundreds of thousands of removal cases a year. The case backlog doubled from 2006 through 2015, even as new cases declined. We recommended improving the system's management, including its hiring process.

The Alternatives to Detention program, in which people with pending cases are released and may be monitored electronically. Immigration and Customs Enforcement reported high levels of program compliance from 2011 through 2013 but did not collect data on the entire program. We recommended improving program performance measures.