In Kansas, prosecuting human smugglers may soon require deciding whether victims broke law

Kansas judges and juries could soon be forced to decide whether human smuggling victims are in the United States illegally, which some attorneys warn would put the due process rights of vulnerable individuals at risk.

The Republican-controlled Legislature last week sent a measure to Democratic Gov. Laura Kelly to create the state-level felony crime of human smuggling. Lawmakers aim to empower law enforcement to arrest and prosecute those transporting undocumented immigrants across Kansas.

The problem, according to critics of the bill, is that to convict smugglers, Kansas courts will have to find that those who have been smuggled are in the country illegally – a decision typically made by federal immigration courts. At a basic level, to prove that smugglers broke the law, prosecutors will also have to show that those who were smuggled did, too.

Supporters of the bill say it’s filling a gap in Kansas law. While Kansas already has a human trafficking law, supporters say that law is intended to target individuals who traffic others against their will. A human smuggling law would allow prosecutors to bring cases against those who are moving individuals with their consent.

But defense attorneys fear the bill could trample due process rights for individuals who have been allegedly smuggled. These individuals will effectively be found in Kansas courts to have broken the law even though they aren’t charged in state court and haven’t been allowed to offer a defense.

If called to testify against their smugglers, their testimony could potentially be used against them in federal court; it’s unclear whether Kansas courts would inform them of their 5th Amendment right against self-incrimination.

“There’s really two questions being asked: Did the smuggler smuggle something? And is the smuggled person here in the United States illegally?” said Emily Brandt, assistant appellate defender for the Kansas State Board of Indigents’ Defense Legislative Committee, which opposes the bill.

“It’s almost like there are two people on trial, but only one person is technically being prosecuted.”

The Senate approved the measure, HB 2350, in a 36-2 vote. The House approved it 96-26, with some Democrats opposing it. Kelly’s office didn’t respond to questions Wednesday.

Franklin County Sheriff Jeff Richards, describing the need for a human smuggling law, told legislators earlier this year about a business in his eastern Kansas county where, he alleged, most of the workers entered the country illegally and are housed in “flop houses” in poor condition. He didn’t identify the business.

The workers are paid less than what a citizen would receive, he said, while they must work six or seven days a week. They must also pay more in rent.

“The workers I have interviewed do not consider themselves victims, as they understood the working arrangements prior to their arrival. I believe the business owner is taking great advantage of these people, and is using the ‘loophole’ in the law to do so,” Richards said in written testimony to the Legislature.

But the large legislative majorities in support of the proposal belie the concerns raised about its potential consequences.

The bill doesn’t define what it means to be in the country illegally. It includes no instructions on how to determine whether someone is present illegally, such as consulting federal immigration court decisions or U.S. Immigrations and Customs Enforcement.

It defines human smuggling as “intentionally transporting, harboring or concealing an individual into or within Kansas” when the person knows or should have known the individual is in the country illegally, benefits financially or receives anything of value and knows or should know that the individual “is likely to be exploited for the financial gain of another.”

“Immigration is a federal issue. There is federal law on human smuggling,” said state Sen. Ethan Corson, a Fairway Democrat who voted in favor of the bill despite these concerns.

“And so it is, to me, a question that I wish we would have examined more in the committee process of whether a state can really legislate in this issue because I worry that it’s preempted by federal law.”

State Rep. Stephen Owens, a Hesston Republican, said the bill shouldn’t conflict with federal law because it punishes the smuggler, not the immigrant.

Owens said he believed the measure would likely apply if law enforcement pulled over a box truck with people inside. Law enforcement, he said, can call U.S. Immigration and Customs Enforcement to determine whether or not the individuals being transported are in the country legally.

“We’re not trying to address the folks that are here illegally,” Owens said. “In a perfect situation we’d have a federal government that would clean up our immigration system and curb illegal immigration or just make immigration the norm. Our federal government is choosing not to act and so it’s imperative that we do our part.”

Kansas Attorney General Kris Kobach, a Republican with a long history of supporting hard-line immigration policy, had asked lawmakers to amend the bill to more closely reflect the wording of federal law. Kobach’s amendment said that the federal government would determine whether someone was illegally present, and would have prohibited state and local law enforcement from making their own determination.

Kobach’s office didn’t respond to questions Wednesday.

The Senate adopted Kobach’s amendment but the House balked amid fears that it would give the state attorney general and law enforcement wider latitude to prosecute undocumented immigrants and anyone who aids them because it contained a broader definition of human smuggling. Lawmakers are also weighing a measure to give Kobach the power to prosecute multi-county crimes, which could extend to the anti-smuggling proposal.

During legislative negotiations, Owens suggested an Uber driver transporting an undocumented immigrant could have been ensnared by the human smuggling law under Kobach’s proposed language. State Sen. Kellie Warren, a Leawood Republican, and other senators agreed to back down and the amendment was removed, citing the need for quick action on the topic.

“It’s been going on far too long,” Warren said, “and with the situation at the southern border, it doesn’t look like it’s going to get any better.”