Immigration Article of the Day: Decriminalizing Migrant Smuggling by Pedro Gerson

Decriminalizing Migrant Smuggling by Pedro Gerson

Abstract

While historical narratives often cast smugglers helping people escape persecution as heroes, modern discourse portrays migrant smuggling as an inherently predatory criminal enterprise. This Article argues that the criminalization of human smuggling through 8 U.S.C. § 1324 should be abolished. The criminalization of migration, including anti-smuggling provisions, has made border crossing increasingly lethal while failing to deter unauthorized entry. Contrary to government narratives of sophisticated criminal enterprises, empirical evidence reveals that smuggling networks typically operate as small-scale, localized operations that migrants employ as survival strategies in response to militarized borders and restricted legal pathways. These realities, combined with evidence that anti-smuggling laws actively undermine migrant safety without providing meaningful law enforcement benefits, demonstrate that criminalization cannot be justified on either retributivist or consequentialist grounds. Instead of criminalization, this Article proposes that expanding legal migration pathways would better serve both humanitarian and administrative goals.