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. This is evidenced by exhibit 4, in which
[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, according to exhibit 5, 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 wellbeing
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, thirteen 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 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.