Human smuggling: Defense attorneys question whether law is too harsh on alleged smugglers

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This week's cover story, "Disappearing Act," examines the difficulties of enforcing Colorado's anti-human smuggling law, which was passed in 2006. Though the law was well-intentioned, prosecuting the alleged smugglers has proven tough. As such, many smugglers end up taking plea deals that result in little to no jail time before they're deported to their home countries.

But defense attorneys question whether even that is too harsh.

Why? Because the alleged smugglers being arrested on Colorado's highways are not coyote kingpins, says State Public Defender Douglas Wilson. Often, they're immigrants looking for work themselves. "The coyote, in my mind, is someone who takes money to help transport folks across the border," Wilson says. "I don't believe the clients we represented are at the coyote level. They're so far down on the rung that they're merely driving a van."

But driving a van full of illegal immigrants through Colorado is a class three felony. The sentence for a class three felony is up to twelve years in jail for each count.

"The potential punishment is incredibly Draconian for the nature of the offense, given the individuals who are charged with it," says public defender Dana Christiansen. "Most of the defendants are people who have come across illegally and the coyote says, 'The jobs you want are in North Carolina and Wisconsin, and if you drive, you don't have to pay the fee to get from here to North Carolina that I'm charging these other people.'"

Take the case of 29-year-old Francisco Javier Cruz-Lopez, an illegal immigrant from Mexico with a ninth-grade education who crossed the border to find work. In May, court records show he was pulled over on I-70 for driving eighty miles-per-hour in a 75-miles-per-hour zone. The trooper who made the stop noticed that there were ten other people in the van, and when asked, the passengers admitted they were in the country illegally. Cruz-Lopez told the trooper he was receiving money from the passengers to help pay for gas for the trip. They were headed to Indianapolis.

Cruz-Lopez was arrested and charged with ten counts of human smuggling.

Cruz-Lopez insisted that he was innocent and said he didn't understand that driving the van was a crime. The court appointed him a private attorney, a woman named Yliana Carmenate, who was disheartened by the choice facing her client. He could plead not guilty and proceed to trial, which would mean sitting in jail for several months until his court date. Or he could plead guilty, serve some time and get deported sooner.

"He wants a guarantee as to what's at the end of the tunnel," Carmenate said in early October. "I can't in good faith tell him that I know."

On October 21, Cruz-Lopez decided not to gamble with a trial. In the wood-paneled courtroom of Arapahoe County Judge Elizabeth Weishaupel, he pleaded guilty to one count of human smuggling. The plea was part of a deal worked out with the state prosecutor that called for him to serve two years in prison.

But the judge had the final say as to the sentence. She asked Cruz-Lopez, who appeared dressed in an orange jumpsuit with his wrists shackled to a chain around his waist, if he wanted to make a statement before she ruled. Through an interpreter, he apologized.Then he asked for mercy on behalf of himself and the seven family members he was supporting back home, including his wife and two young children.

"I have to ask if you could impose anything shorter than two years," he said. "I have a difficult family situation. I was coming with the intention to work. My family loves me and they want me to be back soon. I'm pleading guilty to this crime because I want to be with my family."

But Weishaupel didn't budge. "I understand you want to be with your family," she said. But, she added, "the crime to which you plead, the smuggling of humans, is a very serious charge." She upheld the two-year prison sentence, and Cruz-Lopez was led out of the courtroom in handcuffs.

In the parking lot after the hearing, Carmenate was visibly frustrated. Her voice was raised and her words tumbled out rapid-fire. The system isn't working for anyone, she said. Not prosecutors. Not defense attorneys. And certainly not defendants like Cruz-Lopez.

More from our News archive: "Immigration and Customs Enforcement office in Greeley to be 'transparent.'"

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