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The gray, fifteen-passenger Ford van barreled down a rural stretch of U.S. 40 in eastern Colorado, headed west toward Limon. It was just before 2 p.m. on November 26, 2007, when the van sped past Colorado State Patrol trooper Mary Nall, who clocked it at 82 miles per hour. Nall flipped on her lights and gave chase.
When the van pulled over, Nall approached it and could see that the windows were tinted. But according to her later court testimony, she could tell right away that the back was packed with people. She asked the driver, a Hispanic man in his twenties, if anyone in the van spoke English. Only himself, he said, and the front-seat passenger, a black woman named America Washington. A few of the passengers were children, and Nall asked if they were traveling with their families. The driver turned around, repeated her question in Spanish and interpreted the answer. No, they were traveling alone.
She asked the driver for his identification, and he handed her an Arkansas license that showed him to be Jose Chacón-Posada, age 27. But when Nall called it in, it came back suspended. Washington didn't have a valid driver's license, either.
Nall had recently undergone a four-hour training session on how to spot potential human smuggling, and this looked like it. She called for backup — specifically, a trooper from the state patrol's new Immigration Enforcement Unit, a cadre of 23 officers authorized to enforce certain sections of federal immigration law in order to curtail human smuggling and trafficking on Colorado's highways.
Trooper Brian Abbrecht met Nall at the state patrol's Limon office, where she'd had Chacón-Posada follow her, caravan-style, because several passengers said they needed to use the restroom. When Abbrecht arrived, Chacón-Posada was inside the office in handcuffs. The passengers — all seventeen of them — were huddled in the van in the parking lot. Several were sitting on each other's laps.
Fluent in Spanish, Abbrecht asked them if they had documents allowing them to be in the United States. All but Washington admitted they didn't. So Abbrecht drove them in a state patrol van to a federal immigration center in Denver to begin the process of deportation. Within days, several of them would be gone and the others would be mired in the secretive detention system, waiting out of public view to be sent home. Washington wasn't charged with any crimes, and was allowed to go free that day.
Meanwhile, Chacón-Posada was charged with sixteen counts of human smuggling, a felony that carries significant prison time, plus driving offenses.
It was the beginning of a case that would confuse judges, frustrate attorneys and call into question an anti-human-smuggling law passed by state lawmakers in 2006 at the height of the hysteria over illegal immigration. The law aims to protect immigrants and make highways safer by punishing coyotes. But cracking down has proven difficult.
In four years, state prosecutors in 25 counties have filed charges in 87 human-smuggling cases. Of those, only five have gone to trial, and most have been dismissed by judges or juries for lack of evidence. In the majority of cases, the alleged smuggler — who is rarely a coyote kingpin, more often an immigrant looking for work himself — never makes it to court. Instead, he ends up taking a plea deal that results in little to no prison time, possibly probation and definitely deportation, which leaves Colorado law-enforcement agents with no assurances that he won't come back.
Why such lenient treatment? District attorneys say they have no choice. The cases are nearly impossible to prosecute because of a lack of witnesses. State troopers can arrest the drivers, but they must turn the passengers over to Immigration and Customs Enforcement. Sometimes prosecutors can scramble to secure videotaped depositions. But most of time, the witnesses are deported before that happens.
"Once they're taken into ICE custody, it's hard for us to have any impact on the process," says Trish Mahre, a deputy district attorney in Mesa County who recently prosecuted a smuggling case — unsuccessfully. "I don't have a process that says 'Don't deport them, because I need them for trial.'"
In the winter of 2006, state senator Peter Groff was among those concerned about a string of fatal van crashes on Colorado's highways over the previous few years. The vans were typically filled with as many as twenty illegal immigrants who had paid to be driven from a border state like Arizona to someplace in the Midwest or East Coast where they'd been promised work, cutting through Colorado to get there.
In January 2000, a van packed with eighteen Mexicans drifted off a highway in southeastern Colorado, flipped and landed in a ravine, killing three. The following year, a van full of nineteen immigrants collided with a tractor-trailer. In 2004, six immigrants, including a pregnant woman, died in a wreck on I-76. And four more illegal immigrants died in three separate crashes in 2005.
"Drivers who were clearly tired trying to drive mountain roads, sometimes in inclement weather, were clearly a safety risk," says Groff. Plus, the conditions inside the vans were inhumane. Passengers had to lie on the floor or stack themselves in the cargo area. "It's not like a family road trip, where you get to get out and stretch your legs."