Most human smuggling cases end in plea deals - East Valley Tribune: News

Most human smuggling cases end in plea deals

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Posted: Friday, October 3, 2008 7:41 pm | Updated: 9:30 pm, Fri Oct 7, 2011.

Illegal immigrants charged with violating Arizona's anti-human-smuggling law spend months in jail waiting for their cases to move through court.

And in a vast majority of the cases, that is the only jail time human smuggling convicts face.

After the arrest: About 360 suspects were arrested under the human smuggling law in 2007. Almost all of them were given probation and voluntarily deported. SOURCES: Maricopa County Attorney's Of?ce; Court records; Tribune research, Graphic by Ryan Gabrielson, Scott Kirchhofer/EAST VALLEY TRIBUNE

More than 90 percent of suspects strike plea deals with the Maricopa County Attorney's Office that lower their crime to a Class 6 felony, one level above a misdemeanor. Such deals also sentence them to six months to a year of unsupervised probation, court records show.

Illegal immigrants convicted under the human smuggling law normally receive voluntary deportation within days of their plea deals, according to U.S. Immigration and Customs Enforcement.

The federal agency's Arizona office checked the status of 50 human smuggling convicts whose names were provided by the Tribune. Forty-seven of them agreed to have ICE return them to their home country, the agency used an expedited removal to expel one and two were U.S. citizens.

County Attorney Andrew Thomas won election four years ago pledging to fight illegal immigration and is running for re-election on a similar platform.

Thomas has publicly acknowledged that the majority of human smuggling prosecutions end with probation. At a news conference last month, he said that happens "despite our best efforts."

However, in the more than 300 such cases that the county attorney's office filed in 2007, it was Thomas' office that ultimately agreed to a plea bargain in almost every one, a Tribune review of court records found.

Of 353 human smuggling convictions, figures from the county attorney's office show only 17 of those convicted received jail time.

That is all part of the plan, Thomas said.

"My goal is not to fill our prisons with illegal immigrants who have committed human smuggling violations," he said. "But rather, to make them do some jail time, earn a hard felony conviction and not come back."

The pleas in human smuggling cases don't go against Thomas' policy requiring defendants to "plead to the lead" - the most serious charge - because that policy covers violent felons, and most of these are nonviolent cases, he has said.

Under sentencing guidelines, set out in state law, conviction for a Class 4 felony like human smuggling comes with a minimum of 18 months in jail. It recommends 30 months of incarceration. County Sheriff Joe Arpaio has used that fact to justify creating a human smuggling unit charged primarily with enforcing that law.

"It's a Class 4 felony. You can't even get out on bond, so it must be somewhat serious," Arpaio said earlier this year.

But a Tribune review of court records for those arrested on suspicion of human smuggling in 2007 found those convicted rarely received additional jail time. In nearly every case, the suspect agreed to plead guilty to the lower felony in exchange for a year of probation, which few of them ever have to serve. The deals often include a condition that the convict be released with credit for time served waiting for their case to be decided.

Additionally, the deals also ensure that the felony doesn't later become a misdemeanor by labeling it a "designated" felony. Otherwise, state law allows judges to downgrade a Class 6 felony to a misdemeanor if the offender completes probation.

"The idea is that the felony conviction will make it difficult for them to ever legally immigrate back to the United States, or become a citizen," Thomas said. A felony conviction "certainly is not helpful to that process," he added.

The county's Adult Probation Department is responsible for initially determining whether a suspect is in the country illegally. But in roughly half the 2007 human smuggling cases, court records show, the probation department was unsure whether the suspect was an illegal immigrant and, ultimately, whether they were deported after being released.

In a few cases, illegal immigrants have been released from jail and placed on unsupervised probation when ICE hadn't placed a "hold" on them and there is no other arrest warrant, said Michael Goss, the probation department's deputy chief.

"We can't just go out and arrest them and say, 'OK, you're an illegal and so we're violating your probation,' " Goss said. "If they're out in the community and there's no hold on them from any jurisdiction, then we're under the direction of the court to supervise the person."

The sheriff's office partnered with ICE in January 2007 and, since August last year, has checked the legal status of all suspects booked into county jail. "I would think that the system has kind of clamped down since it's become a big issue," Goss said.

Figures released by the county attorney's office show that 96 percent of those convicted of human smuggling were illegal immigrants. A Tribune database shows that fewer than 2 percent of such suspects arrested by the sheriff's office were U.S. citizens. Arrests by the sheriff's office account for the vast majority of human smuggling prosecutions.

The rarest occurrence in all the human smuggling cases is a trial, court records show.

Eighty-six percent of those suspects arrested by the sheriff's office were charged with conspiring to smuggle themselves into the country; virtually all of these cases end with plea bargains.

Cases that originate at drop houses, where most of the violence associated with human smuggling takes place, are the most likely to go to trial. However, these cases are typically tried on kidnapping, assault or even homicide charges - not human smuggling.

Still, few drophouse cases go to trial.

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