Human Smuggling Law

April 6, 2006

Transcript:

José Cárdenas:
Good evening. I'm José Cárdenas. Tonight on Horizonte. Undocumented immigrants indicted under a new state law on human smuggling. We'll talk about both sides of the issue. And thousands of high school students walk out of class to protest federal immigration legislation. Hear what school officials are doing to encourage kids to stay in school and educate them about how their protests can be a valuable lesson in the classroom. All this coming up next on Horizonte.

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José Cárdenas:
Last week, more than 1,000 valley high school students left the classrooms and organized protests against immigration reform. Most of the students involved were from Phoenix union high school district schools. District administrators met with city officials last Tuesday to talk about how to keep the kids in school. Joining us to talk about what happened last week is Craig Pletenik, spokesman for the Phoenix union high school district.

José Cárdenas:
Craig, welcome to Horizonte.

Craig Plentenik:
Thanks, Jose.

José Cárdenas:
Give us an overview of the demographics of the district first.

Craig Plentenik:
Our district is 24,000 students 9th three 12th grade. We cover 220 square miles of central and south Phoenix. We have 75% Hispanic students and about 90% minority.

José Cárdenas:
What about the demographics in terms of Spanish spoken in the house and so forth?

Craig Plentenik:
I think that surprises some folks. But clearly 60 percent of our students come from homes where the primary language is not English. The majority of that is Spanish.

José Cárdenas:
You had a lot of students walk out on the Friday of the big march, the 20-30,000 which was the estimate for the total numbers there. But there were then walkouts the following week Monday and Tuesday. Were you surprised that that happened?

Craig Plentenik:
We didn't notice a lot of students walking out on the Friday. Friday happens not to be our best attended day, anyway. The Monday was a surprise. The Tuesday almost seemed like a copy cat. Because some of the real leaders and some of the real students who felt so strongly about this did not walk out. They had already met with their principals and with their teachers and decided it wasn't the thing to do. The big key, the big day was going to be Wednesday and Wednesday, Thursday, Friday things were quiet. I got to tell you the students themselves were either the ones that got on the public address systems or stood at the gates, they appealed to their colleagues, don't do this. This isn't the right way to do it. That was I thought we had come a long way.

José Cárdenas:
Well, come a long way from what? How many walked out on Monday and Tuesday?

Craig Plentenik:
Approximately 500 walked out on Monday, mainly from north high school, metro tech and Trevor Brown. About 2,000 walked out on Tuesday. And they seemed to gather in different parks and it didn't seem to be as organized and it didn't seem to be very official at all. But they thought that maybe it was their turn to take a day off. So after that, nothing.

José Cárdenas:
Any differences on those two days between closed and open campuses?

Craig Plentenik:
Our campuses are closed. But that doesn't mean that we're going to stand at the gates when 200 people walk towards the gates. We're not going to physically confront our students. What we did do -- and every principal has a way too doing it. Some threaten to call the mama and daddy. But we took id's and tried to identify the kids the best we could and let them know there were repercussions to walking out. It's an attendance issue. It's ditching class, skipping class. So there are disciplinary matters as well. As well it doesn't help them academically.

José Cárdenas:
There was also some concern expressed by city officials about safety of the students themselves leaving campus. What kind of discussion did you have about that?

Craig Plentenik:
I think the city was most concerned with man power and the fact that they were following these kids along. And they really appealed to us to do what we could to keep our kids in school. And I got to tell you that we didn't do it by threatening them. We did it by appealing to their intellect and appealing to the fact that these young people are passionate about these issues but there are different ways to go about eliciting change. Wednesday turned into an instant civics class in just about every campus in just about every class. We had civics teachers that were working overtime to put together lessons that math teachers and business teachers could talk to their students about. The dialogue was tremendous. One school even had a letter-writing campaign at lunchtime that was well attended and kids could sit down. They add addressees for all their congressmen. We talked about the issues. In some of the assignments they had to come up with their own immigration bills. Teachers like to call that a teachable moment. That's really what happened. Sometimes it's hard for teachers to get kids motivated and inspired about anything. Something like this where there's real relevance particularly to a lot of our students who feel the issues on a personal level was real exciting for our educators.

José Cárdenas:
You indicated, though, that there was some discussion of the disciplinary consequences. What are those?

Craig Plentenik:
It's an attendance issue. We're not going to create a whole different disciplinary action because students are protesting. It's as if they were skipping class, as if they were ditching. And it's progressive. In other words, if you do it for the first time you'll probably get a call home to your parents. But if it happens again and again and again, then there are other repercussions. It could be in school suspension, detention, those types of things.

José Cárdenas:
Were in fact students disciplined for walking out?

Craig Plentenik:
The ones that were identified. Some of the campuses were 40, 50, 60 people left it was easier to do. It was a little harder when 2, 300 left all at once.

José Cárdenas:
You, now, you mentioned the role of school administrators in keeping kids in school. You will elaborate?

Craig Plentenik:
One of the things we wanted to impress upon not only our students but parents -- and we wrote letters home to all the parents -- was be careful about the message that you're sending out there. Leaving school is really contrary to what you're trying to do. Leaving school is you're leaving the very institution that creates the hopes and dreams and realizes the hopes and dreams of these young people. And school is the one area that doesn't discriminate based on race, creed, color, national origin or language. And to walk out on our school and our hard-working teachers really sends a negative message that maybe you don't care about learning the right way and becoming part of the American society.

José Cárdenas:
You mentioned the schools don't discriminate. What is the federal law with respect to identifying students based upon their national origin or their immigration status?

Craig Plentenik:
We are not allowed to ask what their national origin is. We don't ask for social security. And we take all comers.

José Cárdenas:
Now, the anticipation is that the march coming up on Monday, April 10 will attract perhaps as many as 100,000 total. Do you expect that to have an impact on your schools?

Craig Plentenik:
We think it may have an impact in a couple of different ways. Because it's a boycott, a lot of people just aren't going to work period. We think that a lot of kids, particularly again on Monday, may decide not to come to school and may march that way. They could leave after school. And that's really what we're hoping is we want these kids to know that they're free to do whatever they want after school and that's really the time and place to do these protests. Could we have walkouts during the day? Sure.

José Cárdenas:
After school would be what time?

Craig Plentenik:
After school would be anywhere from 2, 2:30 to 3, 3:30.

José Cárdenas:
And the march is scheduled to start at 1:00?

Craig Plentenik:
The march is at one. We think that this thing is going-- we've had organizers already say they've pushed the time back and we've had a lot of leaders including a state representative who came and spoke to the students at metro tech. 200 strong came in and wanted to know more about the immigration issues. He appealed to them, don't leave until school is over. Send the message that school is important, that an education is important and that's what you value. And then after that if you want to go to the rally, that's a wonderful educational experience as well. And the party won't start until the kids get there, anyway.

José Cárdenas:
Well, some rumors that the district may be on half day schedule on Monday. Is that true?

Craig Plentenik:
Not for us. We're going to have a regular day. We do a half day, I believe, the following Wednesday. And we're not going to change that. Every month we do a half day for in-service for our teachers but that's not going to happen.

José Cárdenas:
Now, can students get excused absences to participate in the march?

Craig Plentenik:
They can and we've had that. We had it on the Friday march. And an excused absence is an excused absence whether you're sick or going on vacation or mom and dad think it's important for you to march in this protest. And yes, those would be excused.

José Cárdenas:
There have been incidents on other campuses, not in your district but in other places in the valley involving the Mexican flag. Any discussion of that issue in your district?

Craig Plentenik:
There's been a lot of discussion. And I can tell you that I think as this thing has evolved and as our students have understood the issues and really the volatility and the fact that there is another side to these issues, I think there's been a callout to a lot of our kids to not -- not carry the colors of green, red and white but to carry the American flag. And I think you're going to see a lot more red, white and blue come Monday. I think the kids understand that that can incite hatred in a lot of folks these days. It's a very volatile issue. It's a very emotional issue. I don't think the kids meant anything by it. I think sometimes they're proud of their heritage. A lot of our kids are kind of caught in between. They're not American citizens maybe and they're not Mexican citizens either. And sometimes I think they rally around that flag.

José Cárdenas:
We've got about 30 seconds left. I know that other districts have been calling your district to consult about how to deal with these issues. What lessons have you learned ant what would you tell them? 20 seconds.

Craig Plentenik:
Well, I think that obviously we have to uphold our rules. But at the same time if these issues are strong enough students are going to do what they think they need to do. And I think for us to appeal to them on a higher level has really been a great lesson for us. Our teachers are involved, our administrators are involved and our students are trusting our teachers and our administrators and our schools to lead them the right way.

José Cárdenas:
Craig Pletenik, spokesman for Phoenix union high school district thank you for joining us.

Craig Plentenik:
Thank you

José Cárdenas:
Last month, more than 40 undocumented immigrants were arrested for allegedly conspiring with their coyotes to sneak into the country illegally. The arrests are the first time local officials applied a new state law on human smuggling to smuggled immigrants. A Maricopa county grand jury indicted all the undocumented immigrants involved on felony charges of conspiracy to smuggle human beings into Arizona. Here with us tonight to talk about the law and case is Barnett Lotstein. Barnett is the special assistant deputy to Maricopa county attorney Andrew Thomas. Also here is Alex Navidad. Alex is with los abogados, the Maricopa county Hispanic bar association.

José Cárdenas:
Gentlemen, welcome to Horizonte.

Barnett Lotstein:
Pleased to be here, Jose.

Alex Navidad:
Good to be here.

José Cárdenas:
Barnett, start by describing the law for us.

Barnett Lotstein:
Last year the legislature in a bipartisan fashion overwhelmingly passed a human smuggling law, which provides that if a person transports an illegal immigrant for profit they have committed a class IV felony. These people are commonly known as coyotes.

José Cárdenas:
And the intent was what?

Barnett Lotstein:
The intent of that law was to stop human smuggling and to punish those who would smuggle individuals.

José Cárdenas:
Even though we have a federal law on the book that covers this?

Barnett Lotstein:
Yes. Prior to the enactment of this statute there was no law in Arizona, state law, that prohibited human smuggling. This law as I said was passed by a bipartisan fashion by the legislature and was signed by the governor. And at the time it was characterized as a tough law against illegal immigration.

José Cárdenas:
And then your office issued a legal opinion about the interpretation of this new law, what, about September of last year?

Barnett Lotstein:
In September of last year county attorney Thomas issued a legal opinion, at the request of sheriff Arpaio. He had made the request for legal opinion on how this law should be enforced. We looked at the statute, we looked at other statutes in Arizona, we made a determination that this law is no different than any other statute. You can agree to conspire to break this particular statute. Conspiracy is a relatively simple law. What it says is if you agree to commit a crime and you do something in further rains of that agreement you are also committing an offense. In this instance, we opined that those individuals that agreed with the coyotes to be smuggled, paid the coyotes to be smuggled that they in fact were conspiring or agreeing to break the law also and therefore would be subject to prosecution. And we issued that opinion last September.

José Cárdenas:
And as before there had been an actual arrest end the statute.

Barnett Lotstein:
That's correct.

José Cárdenas:
Tell us about the current application of the law.

Barnett Lotstein:
I would say about a month and a half ago or so, a sheriff's officer in west Maricopa county came upon a large truck that I believe was driving in an erratic fashion. Stopped that truck. When he confronted the driver of the truck he learned through interrogation that individual was in fact transporting illegal aliens, was in fact a coyote. He looked in the back of the truck and there were approximately 15 -- excuse me, 50 individuals who had crossed over from Mexico into the united states illegally. They then were questioned. They were given their constitutional Miranda Rights because even if you're an illegal immigrant you're entitled to those rights under the constitution. They confessed and admitted they paid this coyote up to $2,000 to be transported into the united states, into Maricopa county illegally. They then were arrested and charged with conspiring with the coyote, or in other words agreeing with the coyote to break the law.

José Cárdenas:
And that case is now pending.

Barnett Lotstein:
Yes, before our court.

José Cárdenas:
Now, Alex, in addition to be vice-president Of los abogados-- you are a federal public defender and criminal law is your expertise.

Alex Navidad:
That's correct.

Jose Cardenas:
You have some involvement in this case, tell us about that.

Alex Navidad:
My involvement is really in organizing a defense. Most of the -- I would say all of the people so far that are representing the defendants are either from the public defenders office or from a conflict office or are appointed counsel. So many of them don't have the time, the resources, you could say, to draft the motions to sort of organize us together. And this is where los abogados have come in to try to help them draft a Chalenge.

José Cárdenas:
The organization has taken upon themselves to get involved in this case.

Alex Navidad:
Yes.

José Cárdenas:
Why is that?

Alex Navidad:
Well, it's our belief that this is really a political act. We don't believe that the county attorney is doing this because this is the correct application of law. We believe it's a political statement on be half of the county attorney against this community.

Barnett Lotstein:
I think I have to respond to that.

José Cárdenas:
Sure.

Barnett Lotstein:
That allegation of politics. There is no politics involved here. The county attorney's office enforces the law. We don't make the law. This law was passed by the legislature. The governor signed it. And our governor, as you know, Jose, is a very talented attorney. She was the United States attorney for the district of Arizona. She was the attorney general of Arizona for I think four years. And now is governor. And when she signed this bill she knew exactly what she was signing. There's no reason to allege politics with regard to this situation. We enforce the law. We don't make the law. And if in fact there are people that think this law is being enforced inappropriately or it was not intended to be enforced against the illegal immigrants -- and that's been an argument made by some people on the defense side -- there's nothing to stop the governor or members of the legislature to go back and say, "look. We didn't intend this law to be enforced the way the county attorney is interpreting it. We're going to change it." We haven't heard a peep out of the governor since September. You know, Teddy Roosevelt once said speak softly and carry a big stick. I think sometimes on this issue our governor speaks loudly and carries a tooth pick.

José Cárdenas:
I want to come back to what was intended but some policy considerations. Is there any concern that making the people who are being smuggled subject to criminal penalties, you may lose them as witnesses against the coyotes who are the real concern?

Barnett Lotstein:
No. We don't really have a concern. We prosecute 40,000 cases a year at the county attorney's office, all kinds of cases. And we've never had a situation where we've lost witnesses. I mean, people will testify in this case.

José Cárdenas:
Even though they're convicting themselves at the same time?

Barnett Lotstein:
Even though they may be entering into plea agreements.

José Cárdenas:
What about enforcement resources?

Alex Navidad:
Could I go back to that real quick? I don't know that's always going to be true. You are going to lose them as witnesses for the federal cases. You have to realize these cases have primarily been prosecuted by the u.s. attorney's office in the past and that the people that were smuggled were generally going to be the material witnesses against the smuggler. This creates an inherent conflict now. Because if they're being prosecuted they're now criminal defendants, it creates a problem for the U.S. attorney.

Barnett Lotstein:
I think that there's never been a dearth of co-conspirators that would testify against those that they conspired with. I don't have any doubt that we will have sufficient witnesses to prove these cases. Talking about the federal authorities enforcing the law, that's kind of an interesting concept because they haven't done it for many years. And that's the root of the problem we're having now in Arizona.

Alex Navidad:
I disagree with that. I've been practicing in federal courts for the last 10-years and I have lots of those cases. All my counterparts in the cj panel have -- people are getting 300, 400-years, lifetimes. I don't agree with the idea that the federal government is not prosecuting coyotes. In fact, the guidelines, the federal guidelines recently within the last five years have increased the penalties to such a degree that, you know, people are getting 40 years to life generally for these kinds of offenses.

José Cárdenas:
Wow. And is that tougher that than what they're likely to face under the new state law?

Alex Navidad:
Definitely. I think the federal guidelines are tougher than it being a class 4 felony.

Barnett Lotstein:
I think we're living in Alice in Wonderland territory to say that the federal government is doing their job. They're just not doing their job. As a matter of fact, most people may not know this but it is a federal crime to be in the United States illegally. It's a federal misdemeanor. And if you cross over the border more than once it becomes a felony. And I challenge anyone to say --

José Cárdenas:
Do you have a resource issue there? Estimates are 1 to 12 million people here without the documentation.

Barnett Lotstein:
That's yesterday. What about today? What about tomorrow? What about the people that crossed the border this afternoon?

José Cárdenas:
Are we saying the only option is to go to jail or go so many?

Barnett Lotstein:
The option is we are a system of laws. And when the government decides to ignore certain laws then it's an invitation to anarchy. If you don't like the law, change the law.

Barnett Lotstein:
If the governor doesn't like the antihuman smuggling statute because she thinks it shouldn't be applied to the illegal immigrants, change the law. Go back to the legislature. Don't just talk tough. Do something about it. And the reason it's not being done is because we are on solid legal ground here. There is no statute, no criminal statute in Arizona, not one, where there's an exception for people conspiring to commit a crime.

Alex Navidad:
We can talk about that. I don't know that I completely agree with that. If I could just address one thing about the politics. I think it's one thing to say we're going to be tough if this is really the business that the county attorney is going to start doing. But they're not going to do this. Realistically they don't have the resources to go after every coyote, after every person that's being smuggled in. This happens every day. Hundreds and thousands of people all the time. And the reason it looks very political is because you choose a specific case here and there. You call the cameras. You tell everyone, look what at great job we're doing on immigration and then you leave it alone. The county attorney isn't doing this every day.

Barnett Lotstein:
That's just not the case. As a matter of fact, just today we indicted three more illegal immigrants for conspiracy and another coyote. Any case that's presented to the county attorney's office by law enforcement, by the agencies that do the arrest, we will prosecute.

José Cárdenas:
And law enforcement agencies, though, have decided that they're not going to arrest?

Barnett Lotstein:
That unfortunately is correct. The local police agencies have decided as a matter of resource allocation that they don't want to arrest these illegal immigrants.

José Cárdenas:
Let me ask one more resource question then I want to go back to what was intended. What are the penalties that these people face if convicted?

Barnett Lotstein:
These are class four felonies and punishable I belief in up to 3.75 years in prison.

José Cárdenas:
Do you think it's realistic these people are going to spend that amount of time?

Barnett Lotstein:
That's up to a judge later. People are under eligibility for probation. That's the maximum sentence.

José Cárdenas:
Alex, does the statute, though, admit of the broad interpretation that the county attorney has given it?

Alex Navidad:
No, it doesn't. I mean, the idea of charging as co-conspirators or charging this conspiracy is not written into the statute. What the county attorney has done is it took this new law and it's using the conspiracy law in combination to charge them.

José Cárdenas:
What about the next point that if the people who proposed the law -- because I understand the sponsor was a republican -- and they're saying that's not what we intended, what about Barnett's point? Why don't they just fix it?

Alex Navidad:
I think they can fix it. But I think the point that the governor signed it she must have known what she was doing and so did the legislators I think is a little skewed in the sense that no one ever thought this would be applied in this way. The federal government has never done that. They don't charge it this way. I suppose they could. They have a conspicuity statute also.

José Cárdenas:
What about that, Barnett. The federal government has the same matter of statutes.

Barnett Lotstein:
That's a matter of discretion in Arizona we have a conspiracy statue jute that is very clear. To say that no one fought is demeaning to these people who were -- I would hope when they pass a law they would know what they're passing. I think when the governor signs a statute, especially a governor who has the background she has, she knows what she's signing. To now come back and say, gee whiz, I didn't intend for that law to be applied that way. They've had since last September to change the law. If they want to change it, change it. We will enforce the law as it's written. That's our obligation as county attorneys. We don't make law. We enforce it. Alex, final words?

Alex Navidad:
This was never the intent of the statute. The legislators were very clear in their arguments in committee sessions and even after it was applied this is not what it was intended, yet the county attorney continues to.

José Cárdenas:
We're going to have to leave it there. Thank you both for joining us on Horizonte

José Cárdenas:
That's all for horizonte tonight. We'll be back next Thursday with a discussion on the immigration march planned for Monday. I'm Jose Cardenas. For all of us here at Horizonte. Have a good night.

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