No More Deaths is a humanitarian organization based in southern Arizona. We began in 2004 in the form of a coalition of community and faith groups, dedicated to stepping up efforts to stop the deaths of migrants in the desert and to achieving the enactment of a set of Faith-Based Principles for Immigration Reform. We later developed into an autonomous project. Since 2008 we have been an official ministry of the Unitarian Universalist Church of Tucson.
– No More Deaths web page
t is a measure of American corruption that the Trump administration has officially criminalized selected acts of Christian mercy. It is a further measure of American corruption that the official criminalization of actions taken to save lives goes little reported and less discussed. Those conclusions are aptly illustrated by the selective prosecution of four women volunteers with No More Deaths for leaving water and food in a desert where thousands of migrants have died in recent years.
Federal Magistrate Judge Bernardo Velasco convicted the women of all the nine misdemeanor charges against them. Each charge carries the potential penalty of a $500 fine and six months in federal prison. He delivered his verdict on January 18, the day after a trial that lasted three days. There was no jury. The court will schedule a sentencing hearing sometime in February. The judge found that the women’s placing of water and food in a lethal environment violated statutes against trespass and littering. There is no dispute that the women did these things in August 2017. The women’s defense rested in part on their assertion that their acts of conscience were protected by the Religious Freedom Restoration Act passed by Congress in 1993 (42 USC 2000bb-1).
Judge Velasco, in his three-page (650-word) verdict, begins by mischaracterizing the complex 803,48-acre region of the Cabeza Prieta Refuge and Wilderness Area, which has a variety of names and sub-names, and parts of which are subject to the jurisdiction of various federal agencies (including the Departments of Defense and Interior, the US Border Patrol, and the Fish and Wildlife Service, as well as the Department of Justice as needed) and the Tohono O’odham Indian Nation. The northern section of the wilderness, to which the Department of Defense allows no public access, is the Barry Goldwater Bombing Range, which is irrelevant to the case against No More Deaths. Twice in his order, Judge Velasco emphasizes the “pristine nature” of the area. Nevertheless, the judge also falsely characterizes the wilderness in an apparent effort to impugn the defendants’ good judgment:
… the preserve is littered with unexploded military ordinance, the detritus of illegal entry into the United States, and the on-road and off-road vehicular traffic of the U.S. Border Patrol efforts to apprehend illegal entrants/undocumented immigrants.
The judge refers to the federal law requiring “people who access Cabeza Prieta to obtain a permit authorizing entry,” although he does not cite the law. He asserts ex cathedra and inaccurately that:
Violators of the access regulations may be verbally admonished to comply with the rules of the Refuge, cited for a violation of the pertinent regulations, banned from the area, or summoned into Court for criminal prosecution. The choice of action to be taken is at the sole discretion of the Refuge’s law enforcement officer, except the latter, which requires the U.S. Attorney’s exercise of its discretion to authorize the criminal prosecution.
There’s much to unpack in this paragraph, which amounts to an invisible masking of federal actions during the Trump administration that bear directly on the case at hand. During the trial, Judge Velasco commented: “This trial is not about the government’s obligations.”
This case is the first federal prosecution of its kind since the Bush administration. The prosecution of No More Deaths volunteer Dan Millis for littering in a different wildlife refuge ended in conviction in 2009. That was overturned the following year by the US Court of Appeals ninth circuit (with a dissent by Judge Jay Bybee, better known for his pro-torture memos). The majority based its ruling in part on the government’s obligation to be clear and precise in its rules and regulations:
We begin by noting that the rule of lenity “requires courts to limit the reach of criminal statutes to the clear import of their text and construe any ambiguity against the government.”… The rule of lenity applies “only where ‘after seizing every thing from which aid can be derived, the Court is left with an ambiguous statute.’ “… In such a case, fundamental principles of due process mandate that “no individual be forced to speculate, at peril of indictment, whether his conduct is prohibited.”
Or in layman’s language, the court required that Millis be able to tell, from the language of the statute, what he was and was not allowed to do. After a painstaking analysis of the statutory language, the court concluded that the arresting officer (and the dissenting judge) was trying to punish Millis for doing something that was not precisely prohibited in the law. This is a standard of legal clarity that is not only reasonable but a clear protection against abuse of authority.
Judge Velasco does not mention this precedent, the only previously adjudicated case similar to the one before him. Nor does he examine the particular language of the rule under which the No More Deaths women were charged. From the judge’s analysis, there is no way to assess whether the rule, as it was written in 2017, was legitimate. We know, from extensive reporting in The Intercept, that early 2017 was a time when the Trump administration was ratcheting up pressure on migrant-rights groups, in particular No More Deaths. Attorney General Jeff Sessions visited Tucson in April 2017 to demand tougher immigration control.
During the Obama administration, Border Patrol and No More Deaths had reached an agreement that the Border Patrol would not interfere with a humanitarian aid facility run by No More Deaths, but would treat it as a medical facility. In mid-June 2017, the Border Patrol broke the agreement and raided the camp with 30 agents, 15 trucks, 2 ATVs, and a helicopter. A No More Deaths volunteer published an op-ed predicting the Border Patrol raid would lead directly to more migrant deaths in the Sonoran Desert: The raid “sends the message that people crossing the desert are unworthy of medical care, food, and water: unworthy of life. Tougher border policy is not just political rhetoric — it is death by dehydration, without a funeral.” The written agreement had protected migrant lives for thirteen years. No More Deaths responded to the raid with a statement that said in part:
Obstruction of humanitarian aid is an egregious abuse by the law enforcement agency, a clear violation of international humanitarian law and a violation of the organization’s written agreement with the Tucson Sector Border Patrol.
During the same period, Fish and Wildlife manager for the Cabeza Prieta Refuge set about tightening rules, including seeking voluntary compliance from No More Deaths. No mutual understanding was reached and a new rule went into effect July 1, 2017, requiring visitors getting permits to enter the refuge to sign a pledge not to leave any food or water behind. At a July meeting, an assistant US attorney was heard to say the US had no interest in prosecuting volunteers for dropping off water and food. Without mentioning the rule of lenity, Slone later said the new rule was intended to “make it really clear so there’s no question in someone’s mind what the rules are.”
On August 13, when the four women from No More Deaths entered the refuge, they did not seek a permit. There is no certainty as to what they knew or didn’t know. They knew they were committing something of an act of civil disobedience, but their action was not designed as a direct challenge to the law. They may have known – and No More Deaths almost surely knew – that in recent years, none of the citations issued in the refuge had been referred to the Justice Department for prosecution. Judge Velasco’s 2019 recitation of the risk of prosecution is at best disingenuous as applied to 2017 when it simply was not happening as he explains it. The No More Deaths women were cited in August 2017, and then nothing happened.
Months passed. Border Patrol pressure increased. Border Patrol agents sabotaged or destroyed caches of water and food. Border Patrol agents raided a No More Deaths aid station. On January 17, 2018, No More Deaths released a lengthy report documenting arguably criminal behavior by Border Patrol agents. The report described agents destroying humanitarian aid and included videos of agents pouring water on the ground. Within days after the report came out, the four women were charged for their action five months earlier. Five other No More Deaths volunteers were also charged in that period. All of these prosecutions, as Judge Velasco points out, had to be approved by the Justice Department under Jeff Sessions.
The only such prosecutions approved by the Justice Department have all been against No More Deaths volunteers. No More Deaths has asserted that it is being selectively prosecuted. The four defendants presented evidence including Fish and Wildlife records that they said showed they were being singled out for prosecution. The government denied that. Judge Velasco does not address the question in his verdict.
William M. Boardman has over 40 years experience in theatre, radio, TV, print journalism, and non-fiction, including 20 years in the Vermont judiciary. He has received honors from Writers Guild of America, Corporation for Public Broadcasting, Vermont Life magazine, and an Emmy Award nomination from the Academy of Television Arts and Sciences.