Abstract
Excerpted From: Pedro Gerson, Decriminalizing Migrant Smuggling, 39 Georgetown Immigration Law Journal 237 (Spring 2025) (223 Footnotes) (Full Document).
The rescue of over 7, Danish Jews to Sweden in 1943, facilitated by smugglers who helped them escape Nazi persecution, stands today as a celebrated example of moral courage. Similarly, the Underground Railroad, a network of safehouses that helped enslaved Blacks escape from the American South in the nineteenth century, is now remembered as a valiant part of the history of the struggle against slavery. More recently, North Korean defectors, many of whom employ human smugglers to escape, are welcomed and celebrated in the West.
In stark contrast with these historical narratives, modern discourse on human smuggling in the United States, Europe, and Australia portrays smuggling and harboring migrants not as a lifeline for refugees but as a predatory criminal enterprise. While this distinction partly reflects the difference between smuggling people out of versus into countries, both forms of smuggling fundamentally serve the same human need: avoiding death and persecution. Yet despite this humanitarian dimension, smuggling has become a primary target of national and international law enforcement, spawning multinational task forces, treaties, and enforcement programs funded by billions of dollars. So much so that even humanitarian efforts are targeted for criminal prosecution. This Article focuses on the U.S. context to argue that criminalizing human smuggling cannot be justified on either retributivist or consequentialist grounds, meaning that 8 U.S.C. § 1324, the migrant smuggling statute, should be abolished.
Human smuggling is “a form of illegal trade in which the commodity is an assisted illegal entry into a country.” In the United States, this conduct is proscribed under 8 U.S.C. § 1324, which criminalizes both bringing in undocumented migrants to the United States and/or harboring undocumented migrants once they are inside the country. It states that it is a crime to knowingly “bring … or attempt[] to bring to the United States [a noncitizen] at a place other than a designated port of entry” or to “conceal [], harbor[], or shield[] [them] from detection.” Crucially, statutorily as well as conceptually, smuggling is distinguished from human trafficking, which is done against the will of the person being displaced or moved.
The anti-smuggling statute represents a critical component of the broader framework of “managing migration through crime.” Scholars have extensively documented how, for the last forty years, the U.S. government has increasingly deployed criminal law enforcement mechanisms to regulate migration, resulting in significant deterioration of both immigration and criminal justice systems, and the people impacted by them. Building on arguments from both academics and advocates calling for the abolition of illegal entry and reentry crimes, this Article contends that similar scrutiny should be applied to the anti-smuggling statute.
My argument is, in sum, that migrant smuggling and harboring should be decriminalized because their criminalization is not justified by any of the traditional justifications of punishment. 8 U.S.C. § 1324 does not deter illegal entries and is part of a penal and policy architecture that has only made migration more deadly generally and has led to the criminalization of migrants qua migrants.
U.S. government officials characterize human smuggling across the U.S.-Mexico border as the work of sophisticated, hierarchical criminal organizations systematically exploiting vulnerable people. However, academic research consistently reveals a markedly different reality. Studies demonstrate that smuggling operations typically function as small-scale, decentralized networks of independent intermediaries operating locally along migration routes. These groups usually comprise individuals who share socioeconomic backgrounds with migrants– often being former or failed migrants themselves–and generally avoid involvement in other criminal activities, including drug trafficking.
Furthermore, smuggling markets exhibit characteristics more commonly associated with legitimate business operations than organized crime. These operations feature relatively little inter-competitor violence, depend heavily on reputation and trust, and operate through established financing traditions. This evidence fundamentally contradicts the official narrative of smuggling as a centrally coordinated criminal enterprise threatening national security, instead pointing to a more nuanced reality of localized, informal networks responding to the demand for cross-border movement.
Smuggling emerges as a strategy “that migrants employ to navigate the shifting terrain of immigration enforcement, exploitation, corruption, and organized crime in the space of transit.” This response arises both from the need to escape your country of origin to survive and from a broader system of structural violence: that of the non-immigration system. In a context where legal migration pathways are largely closed, where enforcement policies have made illegal entry increasingly lethal, and where border regions and entire countries have become militarized to suppress migration, people turn to smuggling as the least dangerous option among staying home, traveling alone, or traveling with a smuggler. While smuggling itself carries risks, it often provides protections for migrants unavailable through other means.
On the flip side, the criminalization of smuggling inflicts substantial harm on migrants while offering minimal law enforcement benefits. Although smuggling is a more concrete harm than illegal entry and reentry (because smuggling migrants makes the legal administration more inefficient and costlier), criminalizing it causes greater injury than it prevents. As demonstrated in Part I, migration deterrence policies, including border smuggling prosecutions, have directly increased migrant deaths without affecting arrival rates or entry attempts. This ineffectiveness stems from migration’s nature as a complex phenomenon driven by historical patterns and labor market demands rather than criminal law. The statute’s disproportionate harm to those it criminalizes thus renders it unjustifiable on both retributivist and consequentialist grounds.
More effective solutions exist for both migrant protection and immigration system administration. Expanding legal migration pathways would reduce reliance on dangerous clandestine routes without requiring open borders. Pragmatic policy compromises can create more orderly migration systems while offering realistic opportunities for movement–without guaranteeing citizenship, permanent status, or unrestricted entry. These reforms would prioritize migrant safety while maintaining sovereign control over immigration.
This Article is divided as follows: Part I contextualizes this argument within the broader framework of migration criminalization, analyzing both the lethal consequences of deterrence-based policies and their profound impact on social meaning, while exploring existing scholarly arguments for decriminalizing illegal entry and reentry offenses and broader border abolition movements. Part II reframes human smuggling as a survival strategy, presenting empirical evidence of smuggling operations’ actual nature and examining why migrants rely on these networks despite their risks. Finally, Part III provides a comprehensive analysis of 8 U.S.C. § 1324, first offering a detailed examination of the statute’s scope and application, then evaluating the philosophical underpinnings of smuggling criminalization, and concluding with an assessment of criminal punishment’s justifications in this context and alternative approaches for reducing social harm.
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This Article has argued that 8 U.S.C. § 1324, which criminalizes migrant smuggling and harboring, should be abolished. The criminalization of these activities cannot be justified under either deterrence or retributivist theories of punishment. While smuggling and harboring can be characterized as harms against legal administration, the evidence shows that criminalization has failed to deter these practices while actively contributing to migrant deaths and the stigmatization of immigrant communities. The reality of smuggling operations–typically small-scale, non-hierarchical networks providing services to migrants with few alternatives–stands in stark contrast to government narratives about sophisticated criminal enterprises. This disconnect between rhetoric and reality has enabled an enforcement regime that undermines both humanitarian principles and effective immigration policy.
The solution lies not in criminalization but in expanding legal migration pathways. Current U.S. immigration law provides virtually no realistic options for most prospective migrants, creating conditions where smuggling becomes a survival strategy rather than a criminal enterprise. While protecting migrants from exploitation remains crucial, existing criminal statutes covering fraud, assault, trafficking, and other specific harms provide better tools than broad anti-smuggling provisions. By reconceptualizing smuggling and harboring as rational responses to an overly restrictive immigration system rather than inherently criminal acts, we can develop more effective and humane approaches to migration governance that prioritize both orderly processes and human life.
Assistant Professor of Law at Chicago-Kent College of Law.
