Decision could mean man’s exit from prison

The Colorado Supreme Court’s decision this month to overturn a decade-old law on immigrant smuggling could lead to the release of at least one person from prison.

But it doesn’t appear that the decision will have more widespread ripples through Colorado’s current justice system because prosecutors have all but abandoned filing the charge in recent years, according to a Denver Post analysis of data provided by the Colorado Judicial Branch.

The law was passed during a contentious 2006 legislative session, and prosecutors immediately put it to use, filing dozens of cases a year for the law’s first two years — far more than legislative analysts had predicted. But prosecutors have filed only six cases

since the start of 2013, and no one has been convicted and sentenced for the charge since 2012, according to the judicial data.

That leaves just one person The Denver Post could find who is serving a prison sentence for violating the now-invalidated law: A 30-year-old man named Jario Mendez-Garcia, who was convicted of a charge of attempted immigrant smuggling in 2008 in El Paso County but whose two-year prison sentence didn’t take effect until this year, after a series of probation hearings. A Colorado Department of Corrections record says Mendez-Garcia is eligible for parole in May.

Whether he could be released sooner, though, is uncertain.

Douglas Wilson, the head of the state public defender’s office, which represented Mendez-Garcia, did not return a request for comment about the status of his case or any potential new appeals in other cases following the state Supreme Court’s decision. A spokeswoman for the Colorado attorney general’s office also did not respond to a request for comment.

But state Attorney General Cynthia Coffman has said she intends to appeal the ruling to the U.S. Supreme Court, meaning the law could remain in limbo for a while longer.

The law, known in the statutes as “smuggling of humans,” made it a crime for someone to agree to provide transportation to a person in exchange for money under the belief that they are helping that person remain in the United States in violation of immigration laws. In a 4-3 decision, the Colorado Supreme Court ruled that the law butts in on an area where federal law reigns supreme and therefore is unconstitutional.

The decision immediately impacted only the single case before the court: that of a man currently on parole named Bernardino Fuentes-Espinoza, whose 2008 conviction the Colorado Supreme Court ruled should be thrown out. But to learn how far its impact could spread, The Denver Post requested data on every case filed in Colorado since 2006 that alleged a violation of the immigrant smuggling law.

The Post found 115 cases where prosecutors filed a charge related to the human-smuggling law. Many of those cases, though, resulted in pleas to lesser charges or other dispositions. The Post found 26 cases where someone was sentenced for an immigrant smuggling conviction, and 23 of those cases resulted in a direct or suspended prison sentence, none for longer than five years.

Numbers provided by the Colorado District Attorneys Council are slightly different, showing 40 cases with at least one conviction for violating the smuggling law.

When the law was passed, legislative analysts predicted that it would be used sparingly in Colorado — only about a half dozen times a year, because they expected the majority of cases would continue to be prosecuted at the federal level.

But prosecutors initially embraced the law. According to the Judicial Branch figures, Colorado prosecutors filed 28 smuggling cases in 2007 and 25 in 2008.

Prosecutors’ use of the law, however, dropped off dramatically around the turn of the decade. In 2012, prosecutors filed only seven cases, and they have filed only six cases in the years since, according to the data.

University of Denver law professor César García Hernández said a number of factors could play into the decline in the law’s use — from a change in the political climate to enforcement decisions. But García Hernández said something much more mundane likely played a larger role.

By 2012, Fuentes-Espinoza’s case was winding through Colorado’s appeals court, posing a challenge to the law’s validity and putting any new prosecutions in peril of later reversal.

“Prosecutors were certainly aware of that,” said García Hernández, who teaches immigration law and also writes the Crimmigration blog.

Whatever the reason, García Hernández has written that the state Supreme Court’s decision, “is an important victory for migrants.”