A Tolleson man who initially fled from police during an Oct. 11 traffic stop near the border was involved in human smuggling, according to court records. But instead of being handed over to the U.S. Border Patrol, Orlando Jordan Castillo was booked in the Cochise County jail on a state charge the mandates prison time if convicted.
The 23-year-old Castillo is facing the prospect of several years in prison without early release based on amendments to Arizona Revised Statute 13-2323 which took effect Sept. 24. Among the changes is one which now prohibits judges from placing a defendant on probation regardless of his or her criminal history.
ARS 13-2323 was amended back in April after Rep. Leo Biasiucci worked with Gov. Doug Ducey’s staff and the Arizona Attorney General’s Office to craft House Bill 2696 to require mandatory prison time for human smuggling crimes. The amendments also expanded the types of human smuggling activities which can be prosecuted under state law.
For example, the old statute listed activities (i.e., organizing, managing, directing, supervising, or financing) undertaken mostly on the business end “to promote or further the criminal objectives of the human smuggling organization.” This allowed defendants to argue their conduct did not meet the definition of those activities.
But as a result of HB2696, the statute now makes coordinating, facilitating, leading, assisting, or participating in activities illegal if done to support a human smuggling organization or operation. The addition of “operation” allows someone to be charged under 13-2323 even if the conduct is part of an informal undertaking.
And all offenses committed under the amended statute are now Class 2 felonies. Other types of Class 2 felonies include manslaughter, armed robbery, and dangerous crimes against children.
Most significantly, defendants convicted of offenses committed under 13-2323 on or after Sept. 24 are now ineligible for suspension of sentence – this means no probation in lieu of jail or prison, no pardon, and no early release from confinement except under very limited circumstances.
Biasiucci (R-Lake Havasu City) had introduced bills in recent years addressing human trafficking and sex trafficking. That led Ducey’s office to reach out to him during the 2022 legislative session to address the significant rise in human smuggling activity due to the Biden administration’s open border policies.
“We have seen numerous situations where local Arizona law enforcement agencies have come in contact with human smugglers, only to be denied arresting powers from the federal government,” explained Biasiucci. “We knew that if the policies of this administration, or any future administrations, were to ignore arresting or prosecuting crimes related to human smuggling, we as a state should have the authority to do so.”
And that is exactly what the Arizona Legislature did in passing HB2696, Biasiucci told Arizona Daily Independent.
“If the federal government refuses to do their job protecting our country from these heinous crimes, we will handle it ourselves,” said Biasiucci, the House Majority Whip.
As to Castillo’s case, he remains in the Cochise County jail in lieu of $100,000 bail. The high bail amount was requested by Cochise County Attorney Brian McIntyre, who has also relied on the new version of ARS 13-2323 to prosecute other human smuggling cases in his county which shares 80 miles of border with Mexico.
Biasiucci says he appreciates McIntyre for “his courage to prosecute” defendants in under the state law.
“These human smugglers will never stop unless they are arrested and prosecuted to the fullest,” he said. “Once they get the message that these crimes will not be tolerated in the state of Arizona, and that we will prosecute to the fullest, maybe they will think twice before getting involved in these heinous crimes.”
There is also something bigger at play with Arizona’s expanded ability to prosecute human smuggling offenses in state court.
“I believe that it is important for states to recognize that the Founding Fathers put the 10th Amendment in place for a reason,” he said. “We must never forget that the states created the federal government and gave them their powers. This is a perfect example of the federal government not doing the job we expect them to do. When that happens, we need to take matters into our own hands.”
Biasiucci’s HB2696 also toughened other state laws related to human trafficking, sex trafficking, and sex crimes against children.
Castillo has been ordered to appear Oct. 21 in Cochise County’s Early Resolution Court. Public records show he is also the subject of failure to appear warrants out of Maricopa County in two drug cases.
