Migrants who pay others to smuggle them into this country can’t be charged with conspiracy, a Maricopa County Superior Court judge ruled Tuesday. Judge Thomas O’Toole overturned Arizona’s first jury conviction under a 2005 state law that makes human smuggling a crime.
County Attorney Andrew Thomas immediately filed an appeal. But if a higher court sides with O’Toole, that would undermine Sheriff Joe Arpaio’s practice of arresting illegal immigrants and Thomas’ practice of charging them with conspiracy.
The judge acknowledged the evidence shows that Adolfo Guzman-Garcia, the defendant in the case, paid smugglers $700 to bring him into the United States. But O’Toole said the law does not make someone a criminal for “merely being transported by an alien smuggler.”
County prosecutors were quick to blast the ruling.
“The courts of this state should not single out illegal immigrants as the one politically correct class of people exempted from Arizona’s conspiracy laws,” Thomas said.
O’Toole’s ruling, though, is in line with what state lawmakers said was the purpose of the 16-month-old law.
“Our intent of the original bill was to go after those people who were smuggling individuals across the border and to catch the coyotes responsible, the ones receiving the money and bringing them across,” Sen. Tim Bee, R-Tucson, said.
Thomas, however, said the lawmakers’ intent is irrelevant. He said nothing in the law requires it be used solely to prosecute human smugglers, or coyotes. The county attorney said lawmakers are free to amend the law to say that only smugglers can be charged.
Bee, who will be Senate president in the coming session, said he first wants to see what the appellate courts decide.
But Rep. Ben Miranda, DPhoenix, does not want to wait. He is crafting a measure to narrow the scope of the statute.
Until then, Tuesday’s ruling will have no immediate impact on arrests.
Thomas said he will advise Arpaio that his deputies can continue to arrest migrants on suspicion of smuggling themselves into the country unless an appellate court rules otherwise.
Thomas is the only county attorney in the state prosecuting these crimes.
“I don’t have sufficient resources to keep up with the murderers, the rapists, the child molesters, the drunk drivers, the burglars, the auto thieves, the child molesters,” said Pima County Attorney Barbara LaWall.
She said she assumes Thomas is “trying to make political hay here.”
Thomas denied the prosecutions are politically motivated. He said fewer smuggling rings are bringing people through Maricopa County because coyotes know the sheriff’s office is looking for them.
Another Maricopa County judge has allowed a case against a migrant to go forward. That case resulted in a guilty verdict, and the defendant is awaiting sentencing.
But it is not too late for that judge to throw out the case.
O’Toole allowed the jury in his courtroom to enter a guilty verdict against Guzman-Garcia and did not throw out the case until the defendant was due to be sentenced.
Thomas also said judges have accepted guilty pleas from more than 160 other people who also had been charged with conspiracy. In those cases, though, the defendants were allowed to plead to a lesser charge of soliciting someone to smuggle them into the country. After Tuesday’s order, federal immigration agents took Guzman-Garcia into custody.