DOJ pushes tougher smuggling penalties; defenders and local counsel warn of over‑reach and data gaps

At a lengthy panel on human smuggling, the Department of Justice urged the Sentencing Commission to update U.S.S.G. §2L1.1 with stricter, more finely graded enhancements to reflect large‑scale smuggling events, maritime disasters and cases where smuggled people suffered violence or sexual abuse. DOJ counsel described recent headlines — tractor‑trailer fatalities, unseaworthy boat disasters and cold‑weather abandonments — and argued the guideline should impose incremental increases in punishment to match the scope and harms of those events.

DOJ witness Christina Griffin said the nature of smuggling has become more industrialized and lethal, and recommended (among other things) expanding the alien table to create more tiers by number smuggled, adopting enhancements for transport in overcrowded or concealed compartments, and a cross‑reference to treat sexual assault during smuggling as aggravated conduct. "Smuggling 6 people does not pose the same risk that smuggling 24 people does," Griffin said, urging enhancements that scale with harm.

Border defenders, led by Francisco Morales, urged caution. They told commissioners that many smuggling prosecutions involve market‑driven, low‑level actors — people paid a few hundred dollars to drive migrants a short distance — and that fluid roles (cook, guide, driver) make culpability hard to fix on a single defendant. Morales said the commission’s own sentencing data show a high variance rate and that judges commonly sentence below the guideline ranges, particularly in early‑disposition or fast‑track cases. He warned that quantity‑based increases and strict liability improvements risk imposing long sentences on marginal participants and suggested that convictions of organized‑crime leaders are rare in ordinary district practice.

Probation officers and practitioners acknowledged harms but urged drafting clarifications. POAG supported a tiered b2 table and enhancements for overcrowded concealment spaces (trailer trunks, panga holds), while cautioning that language like “engine compartment” should be broadened to non‑passenger cargo areas; they also urged applying injury/death increases in graduated form. Tribal representatives and victim advocates emphasized that sexual abuse and exploitation occur during smuggling events but often go unreported; they asked the commission to include cross‑references for sexual assault when reliably documented and to ensure victims can be heard about placement decisions.

Proof and investigatory limits were central to the debate. Witnesses for defense and tribal groups noted that many victims are moved out of the country or deported long before sentencing, which can mean allegations are not available for cross‑examination at sentencing; defenders warned that prosecutorial reports alone could produce outsized guideline increases without reliable, defendant‑specific proof.

Commissioners asked staff to examine outside reporting (news investigations, humanitarian organization reports) and internal PSRs to better measure the prevalence of mass‑casualty smuggling events and sexual abuse indicators before adopting structural increases. No changes were adopted at the hearing; the Commission left the record open for written comments through March 18.