Pedro Gerson argues that the law treats migrant smuggling as a crime even when the act of helping someone cross a border has saved lives, and he says that approach should end. In a new article published in the Spring 2025 issue of the Georgetown Immigration Law Journal, Gerson says the criminalization of smuggling and harboring migrants is not justified and has made migration more deadly.
His target is 8 U.S.C. § 1324, the U.S. statute that makes it a crime to knowingly bring or attempt to bring a noncitizen into the United States somewhere other than a designated port of entry and to conceal, harbor or shield a noncitizen from detection once inside the country. Gerson says the law does not deter illegal entries, but it does help drive a broader system in which migration is managed through crime. He points to a U.S. government that has increasingly relied on criminal law enforcement to regulate migration for the last forty years, with results he says have included serious damage to both immigration and criminal justice systems.
The article tries to complicate a word that now almost always carries a law-enforcement meaning. Gerson defines human smuggling as an illegal trade in which the commodity is an assisted illegal entry into a country, and he distinguishes it from trafficking, which he says is done against the will of the person being moved. That distinction matters in his argument because he says the modern response in the United States, Europe and Australia treats smuggling and harboring migrants as a predatory criminal enterprise and has made them a prime target of national and international law enforcement. In that system, multinational task forces, treaties and enforcement programs funded by billions of dollars have been built to fight it, and even humanitarian efforts can face criminal prosecution.
Gerson’s examples are meant to show that the moral picture is not as simple as current policy suggests. He notes that the rescue of over 7, Danish Jews to Sweden in 1943 was facilitated by smugglers. He points to the Underground Railroad, which helped enslaved Blacks escape from the American South in the nineteenth century. And he says North Korean defectors often use human smugglers to escape and are then welcomed and celebrated in the West. In his view, those examples show that smuggling can carry a humanitarian dimension that modern discourse ignores.
The tension in the paper is not whether border laws exist, but whether this one can be defended as punishment at all. Gerson says migrant smuggling and harboring should be decriminalized because their criminalization is not supported by the traditional justifications for punishment. He argues the penal and policy architecture around 8 U.S.C. § 1324 has not only failed to stop illegal entry, but has also made migration more deadly and helped criminalize migrants as migrants. That puts the law’s defenders in a difficult position: they must explain why a statute that has expanded enforcement, consumed billions of dollars and swept in humanitarian conduct is still the right tool for managing movement.
For now, Gerson has shifted the argument from whether smuggling is unlawful to whether the law itself has gone too far. If his case is right, the next debate is not about how to punish more people at the border, but about how much damage the punishment regime has already done.
