Disorder on the Border: Trashing the Law in the Name of Immigration Deterrence

In two recent criminal cases in the United States, defendants received similar sentences for very different sorts of actions. In the first, a young man was convicted of negligent homicide for texting while driving and killing two scientists in the process. The New York Times reported on the case and the sentence meted out to the young man:

He pleaded guilty to two counts of negligent homicide, but his record will be cleared if he fulfills the sentence imposed by the judge. It included 30 days in jail, 200 hours of community service, and a requirement that he read Les Miserables to learn, like the book's character Jean Valjean, how to make a contribution to society.

In the second case, another young man received a sentence of 300 hours of community service, one year of probation, and a one-year ban from a large swath of land on the U.S.-Mexico border. His crime? Leaving jugs of water in the desert for would-be border crossers, in an attempt to help prevent deaths. Walt Staton, 27, was convicted in June of this year and sentenced in August on federal littering charges in an absurd scenario reminiscent of something straight out of Arlo Guthrie's "Alice's Restaurant":

And they was mean and nasty and ugly and horrible crime-type guys sitting on the bench next to me. And the meanest, ugliest, nastiest one, the meanest father raper of them all, was coming over to me and he was mean 'n ugly 'n nasty 'n horrible and all kind of things and he sat down next to me and said, "Kid, whad'ya get?" I said, "I didn't get nothing, I had to pay $50 and pick up the garbage." He said, "What were you arrested for, kid?" And I said, "Littering." And they all moved away from me on the bench there.

The prosecution in Staton's case had actually pushed for five years of probation and a $5000 fine, arguing (as reported on CNN.com) that he had "knowingly littered" and that the inscription on the plastic jugs of "buena suerte" ("good luck") evidenced an intention "to aid illegal aliens in their entry attempt." The prosecution's Sentencing Memorandum went further in its rhetoric, making thinly-veiled allusions to themes suggestive of the so-called "war on terror" and fanning the flames of racialized fear-mongering:

The collateral damage the plastic water jugs cause is also severe. The defendant intended the water jugs to be used by illegal immigrants crossing through the [Buenos Aires National Wildlife] Refuge. His intent and purpose was to give the illegal immigrant the capability to go further into the interior of the country, and into the Refuge....The defendant left full, plastic water jugs on the Refuge with the intent to aid illegal immigrant traffic. This enhances the range of illegal immigrants and other smuggling activity by sustaining their efforts to move further north.... [Border Patrol Agent] Baron states that he has seen water jugs discarded in the northern section of the Refuge. He also makes clear that not all illegal immigrant traffic are people whose sole purpose is to find a better life in the United States. Many of them are drug smugglers and ... approximately 16% of illegal aliens arrested have significant criminal histories, to include murder, assault, rape, and sexual offenses with minors. These are the people that the defendant intended to assist when he committed the offense on December 4, 2008. Instead of targeting people with a legitimate medical need, he haphazardly left water for illegal aliens, drug smugglers and/or dangerous felons, all of whom are in the country without permission.

Recall that the charge in this case was littering, not aiding and abetting or drug smuggling or terrorism. These sorts of rhetorical and juridical machinations undermine the spirit of the law, if not the letter of it, and create untenable outcomes in which homicide and littering are given comparable sentences. Moreover, it is estimated that the U.S. government spent at least $50,000 (a figure that the prosecution did not dispute) to try Staton, a clean-cut young man who was described by the LA Times as a "web designer and soup kitchen volunteer [who has worked] for five years with the faith-based aid group No More Deaths" (NMD), promoting humanitarian relief in the perilous desert "during often-sweltering days, offering food, water and medical help to anyone they find." Spurred by repeated abuses of migrants and the deaths of thousands of border crossers, NMD formed in 2004 with volunteers from among diverse faith communities, social activist groups, and concerned individuals like Staton. In the Tucson sector alone this year, it is estimated that nearly 200 people may have died trying to cross the border.

Now beginning seminary school at the Claremont School of Theology in California, Staton was characterized by his lawyer Bill Walker as "the kind of guy you'd want to have as your next door neighbor." Indeed, I first met Staton when we traveled to New Orleans immediately after Hurricane Katrina as part of a grassroots group seeking to provide food and assistance to the people of the region. Staton's positive outlook, good humor, and dedication to human rights were integral to the ability of our small group of volunteers being able to make our way into the storm-ravaged region and set up relief networks for people who had been ignored by the official organizations. As with most of NMD's volunteers, Staton's compassion is genuine and he is willing to place himself at risk to promote respect for the well-being of others.

Still, during sentencing the government tried to portray him as an unrepentant criminal who "does not care about the environmental impact of his actions." In response, environmental organizations like the Sierra Club wrote to the judge on Staton's behalf:

[W]e do not believe that preserving imperiled species and the lands that support them is at odds with the efforts of border humanitarian groups such as No More Deaths. Flooding, erosion, sedimentation, habitat loss and fragmentation all pose legitimate and serious threats to those species we seek to protect. We do not regard individuals leaving jugs of clean water as a comparable threat, or frankly, as much of a threat at all....The Sierra Club supports the actions of Walt Staton and other humanitarian groups who attempt to save the lives of undocumented migrants in the desert by leaving jugs of clean water at strategic locations along known migrant trails. They later return to check on the water and to remove garbage. These lifesaving actions do not constitute a threat to the environmental integrity of the Buenos Aires National Wildlife Refuge, but rather are of benefit to it. Mr. Staton is a first-time offender who sought no personal gain in his attempts to save life and remove trash from the Buenos Aires National Wildlife Refuge and surrounding areas. A lifelong Arizona resident, longtime humanitarian volunteer and former employee of an Arizona environmental conservation organization, Mr. Staton understands the environmental and humanitarian crisis facing our borderlands. As much leniency as possible would be appropriate when considering a sentence.

The Center for Biological Diversity concurred, in a July 27, 2009 letter to the judge:

The Center has been particularly alarmed in recent years at the impacts of activities in the borderlands related to illegal immigration. However, we see the problem of trash left along migrant trails to be a relatively minor problem in the grand scheme of things. The pernicious effects of border wall construction and other enforcement activities threaten to sacrifice the integrity of our precious border ecosystems for a policy that not only fails to solve the problem, but in fact demonstrably worsens it. Migrants continue to be pushed further into remote, environmentally sensitive areas such as the Buenos Aires National Wildlife Refuge, and enforcement activities follow, with disastrous results for border species and habitats. The last thing we wish to see is human rights pitted against environmental concerns in this matter....We support the work of humanitarian groups and determined volunteers such as Walt Staton who work to save human lives in the midst of the failure of the federal government to produce such a policy reform. We are intimately familiar with the work of No More Deaths, and it is our understanding that they regularly remove more discarded materials from the areas they patrol than they leave behind in the form of life-saving water bottles....Trash is ephemeral -- it can be cleaned up, as No More Deaths volunteers demonstrate -- and it really is just a small part of the damage being done to our nation's natural resources as a result of a misguided and failed federal policy.

The perversity of federal immigration policy is well-documented on the NMD website and in other places, so I won't belabor it here except to note that the strategy of deterrence that drives both border enforcement and crackdowns on humanitarians is fundamentally flawed. People compelled by immiseration and displacement to seek a better life by risking the one they have in the process are not going to be dissuaded by border walls and stringent punishments. Likewise, those who feel called by faith or humanism to put themselves at risk to help others will not let pretextual littering charges deter them from manifesting their compassion. And so, during the course of Staton's ordeal, 13 more NMD volunteers were issued littering citations for engaging in the same behavior that had literally resulted in a jug of water being turned into a federal case.

This open defiance actually got the attention of Secretary of the Interior Ken Salazar, and in July a delegation of NMD volunteers met with him in Washington, D.C. "Secretary Salazar came in about 15 minutes after the meeting started and talked about his concern with what's happening to the migrants in the desert," Ed McCullough told the Tucson Weekly. "He said he's had a general concern about immigration problems for a very long time. He also said there were laws among the various government agencies, and anyone proposing what we're proposing would have to work within the law." McCullough said that the volunteers left the meeting feeling "that they wanted to work something out with the humanitarian groups." This led to a proposed Memorandum of Understanding between NMD and the Department of the Interior about the placement of food and water in the desert, but it has not warded off the littering prosecutions currently underway, and the thirteen humanitarian activists are scheduled to be tried in Tucson later this year.

Our legal system contains a provision dating back to the common law that essentially says a violation of the law may be excused in cases where a greater harm is sought to be averted. Called the "necessity defense," the classic example is a person who sees a house on fire and commits a trespass in order to rescue someone from the inferno. In a manner analogous to this textbook illustration, NMD volunteers seek to aid those caught in a metaphorical and literal desert inferno by (at least in the government's eyes) committing the minor offense of littering. Under this basic principle of justice, a small illegal act should be excused in the name of preventing a far greater harm -- so when Secretary Salazar says that the activists should "work within the law," they already are. Forcing them through the gauntlet of American criminal justice is a waste of time, energy, and resources that could be better spent on both the social and environmental issues that pervade U.S. immigration policies.

Walt Staton and his fellow humanitarians working on the border are about the only thing that makes sense in this exercise in absurdity. "The border has been built in the most intentional way to use the desert as a deterrent, as a weapon that has cost thousands of lives," Staton told IPS News in July. The border wall itself -- which necessitated the government waiving myriad environmental laws to build it -- may be the most extreme form of environmental degradation in the region, and the collateral damage it yields has resulted in the desert being littered with corpses that have succumbed to the unforgiving terrain. Perhaps those who approved the wall and crafted the proto-genocidal policies of deterrence ought to be charged with "knowingly littering" and/or "negligent homicide," since both crimes apparently carry similar consequences in our Kafkaesque system.

In a world where justice seems to be buried in the bowels of bureaucracy, it is time to finally declare that "humanitarianism is not a crime." What needs to be cleaned up in this case are not merely a few plastic water jugs in the desert, but rather the litter of the law that has brought us to this ominous juncture in the first place.