Spotlight: Prosecuting Lifesavers Exposes Deep Problems With Laws and Their Enforcement

Four women leave water and food in a place where desperately hungry and thirsty people are likely to find them. The hope is to save lives.

Others come along and, sneering, pour out the water. One, laughing, calls it “trash.” Another kicks the jugs, violently. A video capturing these acts on several occasions between 2010 and 2017 is difficult to watch, because the people seem to take so much joy in depriving dying people of water.

These episodes might easily represent the best and worst of humanity, but, according to the federal government, the first violates the law and the second upholds it.

“During the summer of 2017, when temperatures reached triple digits in Arizona, four women drove to a vast desert wilderness along the southwestern border with Mexico” bringing water jugs and canned food, according to Kristine Phillips of the Washington Post. Thousands of people have died while making that trek in Arizona in recent years. Natalie Hoffman, Oona Holcomb, Madeline Huse, and Zaachila Orozco-McCormick, volunteers with the humanitarian group No More Deaths, were later charged with federal misdemeanors. Prosecutors argued that they violated federal law by entering a protected refuge area without a permit and by leaving water and food there. The judge convicted them. “In his verdict, U.S. Magistrate Judge Bernardo Velasco said the women’s actions violated ‘the national decision to maintain the Refuge in its pristine nature.’ Velasco also said the women committed the crimes under the false belief that they would not be prosecuted and instead would simply be banned or fined.” (They were sentenced to probation and were fined.)

“Aid workers say their humanitarian efforts, motivated by a deep sense of right and wrong, have been criminalized during the Trump administration’s crackdown on illegal border crossings. Federal officials say they were simply enforcing the law,” Phillips adds. Catherine Gaffney, another No More Deaths volunteer, said the guilty verdict challenges all “people of conscience throughout the country.” She asked, “If giving water to someone dying of thirst is illegal, what humanity is left in the law of this country?” Federal prosecutors argued, successfully, that the women should have been aware that leaving disposable items at the refuge is a punishable crime, and they admitted to violating federal law.

In Marfa, Texas, a four-time elected prosecutor, Teresa Todd, is under investigation for human smuggling after stopping to help three migrants alongside the road at night in February. “I see a young man in a white shirt. He runs out toward the road where I am,” Todd told NPR. He was pleading for help. “I can’t just leave this guy on the side of the road. I have to go see if I can help.” The young man told Todd that his sister, 18-year-old Esmeralda, was in trouble. “I mean, she can hardly walk, she’s very dazed.” The migrants sheltered in Todd’s car while she sought legal advice from a friend who is the legal counsel for the local U.S. Border Patrol. Before the friend could reply, a sheriff’s deputy showed up. An agent was soon reading Todd her Miranda rights. When Esmeralda reached the hospital, doctors told hershe was on the brink of death. The sheriff of Presidio County defended the action against Todd, saying that anyone with undocumented migrants in their car risks arrest.

Now, another No More Deaths volunteer, college geography instructor Scott Warren, faces three felony charges and up to 20 years in prison, for conspiring to transport and for harboring two Central American men. The men had approached Warren, telling him that they had walked through the desert for two days with almost nothing to eat or drink. Warren shared his dinner with them, and called for medical help.

Many have noted, in response, that these laws are unjust, and that this is as good an occasion for jury nullification as ever existed. But in an op-ed in the Washington Post, Warren takes the discussion further. “Over the years, humanitarian groups and local residents navigated a coexistence with the Border Patrol. … At times, the Border Patrol sought to cultivate a closer relationship. ‘Glad you’re out here today,’ I remember an agent telling me once. ‘People really need water.’” Warren continues: “Those kinds of encounters are rare these days. Government authorities have cracked down on humanitarian aid [and are] aggressively prosecuting volunteers.”

Warren is pointing out that unjust laws are only half the problem. Unjust laws on the books are nothing new. For them to do the most harm, they must be enforced as such. Warren notes that smuggling and harboring laws “have always been applied selectively: with aggressive prosecutions of ‘criminal’ networks but leniency for big agriculture and other politically powerful industries that employ scores of undocumented laborers.”

In these cases, actors appear to have set out to enforce them in an unjust way. The U.S. Attorney’s Office did not have to bring charges, but it seems to have jumped at the chance. Former Attorney General Jeff Sessions ordered border prosecutors to prioritize harboring cases, after which such prosecutions shot up. UN Human Rights experts have urged the government to drop the charges.

Border Patrol did not need to cooperate, but it did. The head of the Border Patrol’s powerful union has publicly denounced the practice of leaving water for migrants in the desert. And Judge Velasco, who convicted the four women for leaving supplies in the desert, also presided over Warren’s case before felony charges were filed. He was found to have had private discussions about the case with prosecutors, without defense present, a serious violation.

Velasco did not need to convict the women. His hands were not tied. In the mid-2000s, he presided over the case of two college-age No More Deaths volunteers, who faced felony harboring charges for driving three sick migrants to a church for medical care. “In the run-up to the trial, Velasco batted away one pretrial defense motion after another. But once Collins, the district judge, took over, the case was dismissed,” reports Ryan Devereaux for The Intercept. “Efforts to prosecute No More Deaths volunteers for leaving water on federal lands similarly ran aground in the 9th Circuit.”

When laws are unjust, and prosecutors bring unjust cases, and judges make unjust decisions, juries are often the last line of defense. In Warren’s case, it seems, at least some jurors might be taking that job seriously. The jury is deadlocked.

This Spotlight originally appeared in The Daily Appeal newsletter. Subscribe here.