Earlier this month, federal prosecutors in Arizona brought criminal charges against a local activist who devotes his free time to helping migrants survive the deadly desert route northward. Scott Daniel Warren, prosecutors allege in a complaint accusing him of violating a federal law against harboring migrants, provided two people with “food, water, beds, and clean clothes” for three days.
Attorney General Jeff Sessions has been a vocal proponent of deploying the Justice Department’s extensive resources against migrants. In a April 2017, he urged prosecutors to ramp up criminal charges for five federal offenses related to migration. Most of those are familiar to crimmigration.com readers. Illegal entry and illegal reentry, for example, make up the bulk of federal immigration prosecutions in any given year. Stretching to the end of the George W. Bush administration and continuing uninterrupted they also make up the most prosecuted crimes across the federal district courts.
Harboring, 8 U.S.C. § 1324(a)(1)(A)(iii), is different. Though it was among the five crimes listed by Attorney General Sessions—and comes with a penalty of up to five years imprisonment—it’s a rarely branch of the network of federal immigration crimes. Prosecutors tap it so infrequently that the official statistical compilation of federal court dockets doesn’t even list harboring crimes separately. Instead, it lists four specific types of federal immigration crimes and a fifth category, “other immigration offenses,” into which harboring fits. Even if we assume, implausibly, that every one of the “other immigration offenses” counted refers to harboring, we would still be left with a little-used offense. In 2017, United States Attorneys’ Offices nationwide brought a mere 68 prosecutions for this catch-all category. The year before, they lodged 57. Remarkably, prosecutors haven’t broken double digits since at least 2010. This is noteworthy given that federal immigration prosecutions have dominated criminal dockets in federal courts during that time.
The few harboring cases that prosecutors have brought in the last seven years merely shows how unusual Warren’s situation is. It hasn’t yet been a year since Sessions pleaded with prosecutors to turn their energies toward the pressing problem of people providing food, water, and shelter to individuals who might otherwise die. I’ll be interested to see whether there is a substantial uptick in the number of harboring prosecutions reported when the fiscal year 2018 numbers come in.
Update (March 13, 2018): On March 9, the federal judge ordered the release of the two migrants who Mr. Warren helped. They had been jailed as “material witnesses” until they gave video depositions. They will now be handed over to DHS for removal. In the words of the memo entered on the court’s docket, “It is Ordered that the material witnesses in this action are to be released to the Department of Homeland Security to be returned to their country of origin.”