New law lets state hold illegals for 7 days


May 5, 2007

New law lets state hold illegals for 7 days

Howard Fischer, Capitol Media Services

Gov. Janet Napolitano signed legislation Friday allowing illegal immigrants to be held for up to a week without charging them with anything.

Gubernatorial press aide Jeanine L’Ecuyer said the measure will help counties bring charges against human smugglers who brought people into the country in the first place. Right now, witnesses can be held against their will for only three days.

“The goal that the governor has — and I think shares with a lot of Arizonans — is to put the big guys behind bars, to convict the ones that are the human smugglers, the ‘coyotes’,” L’Ecuyer said.

But Rick Unklesbay, chief criminal deputy for the Pima County Attorney’s Office, said he doubts the extra four days will make a difference in most cases.

“This should assist somewhat,” said Vince Festa, Unklesbay’s counterpart in Cochise County. But he, too, said the seven-day limit may prove insufficient.

Rep. Jonathan Paton, R-Tucson, who pushed the legislation, said if that’s true he will seek to alter the law to allow migrants to be held even longer. That, however, could prove politically difficult: Paton conceded the legislation was a compromise in the first place, as some lawmakers believe it’s improper to detain anyone who is not charged with a crime.

The issue surrounds the need of prosecutors to have statements from witnesses to use against smugglers and others who prey on border crossers. Often the only witnesses are the migrants themselves.

Festa said migrants, especially those who have been crime victims, are not likely to hang around until trial.

State law allows sworn statements to be used when witnesses are unavailable. But those statements are admissible at trial only if the defendant or his or her attorney can participate and cross-examine the witness.

Festa said it is “almost a practical impossibility” to do that in three days. Seven, he said, might help.

The more complicated the case, the less likely that a seven-day window will help.

Pima County’s Unklesbay said he just got a grand jury indictment against two men not here legally who were robbing groups of border crossers.

“We have 43 victims,” he said.

At the same time, Unklesbay said, the criminal defendants don’t have their preliminary hearing for at least another 10 days.

By the time of the preliminary hearing, all the witnesses were back in Mexico.

The other issue, said Unklesbay, is money.

“Who’s going to bear the cost of putting up 20, 30, 40 victims in a hotel, guard them, feed them?” he said. “The cost could just become extraordinary.”

Unklesbay said the solution to the problem would be to let federal prosecutors handle those kinds of smuggling cases, because federal law does not have a one-week limit on holding material witnesses.

But Paton said that’s not realistic.

Two years ago, he was behind legislation that made human smuggling a state crime.

He said federal attorneys didn’t have the resources to bring charges in every case. The result, he said, was the coyotes were simply deported, allowing them to once again try to smuggle people into this country illegally.