Governor Greg Abbott of Texas has called a special session of the Texas legislature for October 10, 2023 to consider proposals that would increase human rights violations and lead to long sentences for thousands of young Texans, Human Rights Watch said today.
Proposals to create a state crime of illegal entry into Texas with a sentence of up to 20 years, empower state law enforcement to deport asylum seekers for illegal entry, and increase mandatory minimum sentences for human smuggling are of particular concern.
"The crime of illegal entry already exists in federal law," said Bob Libal, Texas consultant to Human Rights Watch. "Besides being duplicative, this callous proposal is totally contrary to human rights standards that prohibit governments from deporting refugees to persecution or punishing refugees for illegal entry. State police are not qualified to hear asylum claims or deport people. Their job is to protect public safety."
Previous versions of some of these proposals failed to move to the governor's desk during the Texas legislature's regular session in May and first special session in June. These proposals build on Operation Lone Star, a discriminatory and abusive operation that targets perceived migrants and others for arrest, prosecution, and incarceration on state misdemeanor and felony offenses.
The Texas governor has repeatedly claimed that these new proposals and Operation Lone Star generally are necessary to "reduce illegal migration." Human Rights Watch is aware of no evidence that Operation Lone Star has slowed migration. It has instead strengthened illicit actors who profit from the heightened fears of migrants and blocked or impeded opportunities for people to request asylum in the United States, which is their right under US law. Criminal cartels have profited from Operation Lone Star because their profits increase when migrants must attempt to enter the US by traveling through remote and deadly terrain.
One of the proposals would create a 10-year mandatory minimum sentence for human smuggling and operation of a "stash house."
An analysis of Texas' Public Safety Report System by the Vera Institute of Justice found that 5,164 people were charged with smuggling and continuous smuggling between April 2022 and March 2023. Neither crime currently carries a mandatory minimum sentence. An analysis by the ACLU of Texas found the average length of imprisonment for these offenses was approximately one year.
Human Rights Watch analyzed publicly available data counting people arrested on smuggling charges and booked into Operation Lone Star processing centers in Val Verde County and Jim Hogg County between June 2021 and July 2023. Nearly 80 percent of those booked for smuggling were US citizens with a median age of 26. Nearly 13 percent of those charged with smuggling were ages 18 or 19. In a review of media accounts, Human Rights Watch identified at least twelve children between ages 14 and 17 who were arrested for or charged with smuggling between August 2021 and March 2023.
"The mandatory minimum proposal could imprison thousands of young Texans - some in high school and college - for non-violent offenses, many of them simply for driving migrants, that would cause them to serve at least 10 years in prison," said Kristin Etter, attorney for Texas Rio Grande Legal Aid. "It is truly shocking. Murder and rape charges do not even carry these kinds of mandatory minimum sentences."
Defense attorneys confirm that those charged under the smuggling statute are overwhelmingly young Texans who are recruited through social media platforms to drive people from border communities to other localities in Texas. Contrary to what "smuggling" means in ordinary parlance, the breadth of the statute means that people can be charged simply for having a passenger in their vehicle, as long as police believe they had intent of concealing that person.
"These are overwhelmingly young people - college and high school age," Etter said. She said:
I have a client who is a 9th grader. I also have a client who was accused of smuggling for driving his uncle in a car. Most of our clients are not actually concealing or hiding people but are arrested for solely driving undocumented people in their vehicles in the border area. Subjecting people charged with a non-violent driving offense to a 10-year mandatory minimum prison sentence is so disproportionate and devoid of any sense of justice or fairness.
The proposed mandatory minimum would require a judge to hand down a minimum prison sentence based solely on the prosecutor's charging decision. In doing so, mandatory minimums transfer sentencing power from judges to prosecutors and grant prosecutors unfair and overwhelming leverage in plea negotiations, undermining the human and constitutional rights to fair trial.
Operation Lone Star has cost Texas residents $4.4 billion. The legislature allocated another $5.1 billion for the next two years of the program.
Human Rights Watch has previously extensively documented the impact of Operation Lone Star, finding that the program has led to injuries and deaths, increased racial profiling of border residents, consistently violated the rights of migrants and US citizens, and suppressed freedoms of association and expression. Governor Abbott claimed Operation Lone Star has disrupted drug smuggling networks but an investigation of the Operation by ProPublica, The Texas Tribune and The Marshall Project disputed that claim.
Defense attorneys also report that Operation Lone Star has already resulted in widespread racial and ethnic profiling in border communities.
"We know that mandatory minimums are empirically problematic because they remove judges from having discretion [at the sentencing phase]," said Amrutha Jindal, chief defender, Operation Lone Star Defense, Lubbock County Public Defenders. "People will be facing 10 years in prison for a one-time mistake because they were lured by social media. There have been a lot of studies about racial profiling already taking place under Operation Lone Star, and I fear it is going to increase the number of unjustified stops."
"A large majority of the smuggling arrests resulted from illegal and unconstitutional stops," said Etter. "Some of the reasons cited for the stops have included having Austin license plates or because they were eating a sandwich in the car. There have been searches of cars because the car allegedly 'smelled like migrants.'"
