Arizona recently passed into law provisions that make a person’s illegal presence in the state of Arizona — currently a civil violation under federal law — a crime under state law.  The Arizona law also provides for the arrest of persons where the police have a “reasonable suspicion” that the individual is unlawfully present and where the individual cannot produce the proper documentation.  Last minute changes  were made to the law this past Friday in order to prohibit the use of racial or ethnic profiling by police in determining who to stop and question, and to clarify that questions about an individual’s immigration status should only be asked as part of an investigation of non-immigration related violations.  These changes to the original language were made to try and stave off several threatened lawsuits intended to challenge the constitutionality of the Arizona law.  

These changes to the law may diminish the likelihood that the Arizona state statute will be found to violate the Fourth Amendment and the Equal Protection Clause.  However, the most likely ground for a ruling that the Arizona law violates the Constitution was, and remains, that any state attempt to regulate the border is preempted by the pervasive scheme of federal immigration legislation.  While many observers will anxiously await the outcome of these constitutional challenges, it is important to recognize that there is a separate and more fundamental reason why the Arizona law is a mistake.  The law perpetuates a trend by our elected officials, identified by Professor Jennifer Chacon and others, that mistakenly conflates the criminal law with immigration law.  The convergence between these two separate areas of the law began in the 1990s and gathered momentum after September 11, 2001.  This process needs to be stopped and reversed.

The recent convergence of the criminal law and immigration law can be observed in several areas.  First, both public opinion polls and the rhetoric of politicians have increasingly associated undocumented immigrants with a propensity for criminal conduct, despite the lack of any statistical evidence to support this association.  The recent shooting of a peace officer by drug smugglers in Arizona provides an example.  Early news reports cast the episode as an example of violence by “illegal immigrants.”  The word “immigrant” refers to someone who seeks to change their country of residence.  Marijuana smugglers are not “immigrants” in any sense of the word; all these criminals want to do is deliver their illegal goods to a buyer in the United States and return to Mexico where they can live lavishly and bribe the police to avoid capture.  Allegations that an Arizona police officer was shot by an “illegal immigrant” are not only inflammatory, they reflect a fundamental mischaracterization of what the word “immigrant” means.  Any attempt to associate illegal immigrants with criminal conduct in the minds of the public merely serves to mask the true economic and social issues  that need to be addressed by a sensible system of immigration control.

Second, since the 1990s Congress has increasingly expanded the list of non-immigration related crimes that trigger the subsequent deportation of aliens.  The most notorious example of this is the “aggravated felon” designation.  The appellation “aggravated felon” was originally reserved for aliens that committed serious crimes such as murder and drug trafficking.  However, it has repeatedly been expanded so that it now includes more and less serious offenses, and it also applies retroactively to crimes that would not have led to deportation at the time that they were committed.  As a result, removal from the United States is now the consequence of virtually any non-misdemeanor criminal conviction (and even some misdemeanors).

Third, there has been an increased prosecution of violations of the immigration laws as separate federal crimes, with harsher and more frequent criminal consequences.  For example, illegal re-entry into the country, after having previously been deported, is now a crime punishable by incarceration.  In addition, in the past decade Congress created the federal crime of “aggravated identity theft,” which the Justice Department promptly applied to prosecute undocumented aliens.  The result is that, since 2004, immigration-related prosecutions have topped the list of criminal prosecutions brought in federal court, comprising almost one third (32%) of the total nationally. This is a stunning statistic.

The most obvious result of this convergence of the criminal law with immigration law has been that criminal categories, processes and techniques have been imported wholesale into the enforcement of the immigration laws.  Critics have complained that this process results in the punitive aspects of the criminal law being imported into immigration law, but without any of the accompanying procedural safeguards that protect defendants in the criminal system.  The one aspect of immigration law that most resembles punishment — the identification of individuals subject to forcible removal from the country — has become more severe while at the same time our basic concepts of due process are ignored.

Less appreciated by critics has been the manner in which the convergence of these two areas of the law has worked in reverse.  Last Thursday, I moderated a panel discussion entitled “The Intersection of Criminal and Immigration Laws: Padilla v. Kentucky and Other Recent Decisions of the Supreme Court” at the Annual Meeting of the Eastern District of Wisconsin Bar Association.  The panel included Attorney Maria Baldini-Potermin, Attorney (and proud MU alum) Sara Dill, and AUSA Jonathan Koening.  During our presentation, I was struck by how the Supreme Court’s recent decisions in the Padilla v. Kentucky and Flores-Figueroa v. United States cases interpret criminal law and procedure in a manner that reflects the influence of immigration law.  [Interested readers can order an audio CD of the panel discussion here.] 

Decided just last month, the Padilla v. Kentucky decision  held that defense counsel’s failure to advise a non-citizen of the immigration-related consequences of a criminal plea bargain violated the accused’s Sixth Amendment right to effective assistance of counsel.  The Supreme Court recognized that deportation has become “an integral part” of the penalty that non-citizens face when pleading guilty to a crime.  As a result, criminal defense attorneys now have a constitutional duty to know which criminal convictions lead to removal under the immigration laws, or at least to know those instances where the prospect of removal is sufficiently “succinct and straightforward” under the immigration laws that the client should be informed prior to entering a plea of guilty to a criminal charge.

Significantly, a guilty plea to criminal charges can lead to other types of serious consequences besides removal under the immigration laws.  Criminal convictions can lead to civil commitment, civil forfeiture, loss of voting rights, loss of public benefits and loss of professional licenses.  Does defense counsel also have a constitutional duty to advise clients of these consequences of a guilty plea?  The Supreme Court’s desire to help non-citizens make informed plea bargains may have implications for a great variety of citizen criminal defendants as well.      

 Flores-Figueroa v. United States  involved the interpretation of the federal “aggravated identity theft” statute.  That statute makes it a crime to “knowingly” possess or use ”a means of identification of another person,” with a mandatory two year prison term if convicted.  Federal prosecutors were bringing criminal charges against undocumented workers using fake social security cards, even where the undocumented workers had merely plucked the social security number out of thin air without knowing whether the number belonged to a real person or not.

The Supreme Court ruled that the word “knowingly” should be applied to require proof both that the accused knew that they possessed the false ID and also that the accused knew that the numbers on the ID card belonged to a real person.  The Court was influenced by the fact that a failure to read the word “knowingly” to apply to “another person,” in addition to the possession or use of the ID, would make the imposition of a two year prison sentence turn on whether the undocumented worker was unlucky enough as to select a real social security number when making a fake ID.  Workers lucky enough to choose a number that had not been assigned to a real person could not be charged.

It is not unusual for the Supreme Court to read a mens rea requirement into a criminal statute that lacks one, especially when the failure to do so would allow prosecutors to bring charges in cases involving non-blameworthy conduct.  Examples of prior cases along these lines involve the Court’s interpretation of statutes involving mail fraud, money laundering, and the “innocent” possession of firearms.  However, what is interesting about the Flores-Figueroa decision is that the Court suggests that in the future it will assume that the word “knowingly” used in a criminal statute should be read to apply to all of the elements of the crime.  If this is indeed a new canon of construction that the Court plans to apply across the board in future cases, then the Court’s sympathy for the plight of undocumented workers caught undeservedly in the criminal law may lead to benefits for all sorts of criminal defendants.

Like the Padilla and Flores-Figueroa opinions, the Arizona law is an example of the way in which two formerly separate areas of the law are increasingly blending into one.  Regardless of whether the criminal law is having a greater influence on immigration law, or vice versa, the convergence of these two areas of the law is problematic.

Arizona’s big mistake is not that it chose to trample on the civil rights of one third of its population, although that is a choice that may come back to haunt legislators who supported the bill.  Nor is Arizona’s mistake the embrace of racism, fascism or any other form of “ism,” although there are plenty of unsavory undertones lurking below the surface of this legislation.  The real mistake behind Arizona’s law is the knee-jerk assumption that immigration enforcement can be reduced to a criminal problem, rather than regulated under civil law.

If the federal government continues to make this same mistake as a matter of federal law, by continuing to conflate the criminal law and immigration law, then all of the federalism and preemption arguments in favor of striking down the Arizona state law will count for nothing.  As I argued recently on Wisconsin Public Radio, immigration (in both its legal and illegal forms) is an ongoing economic, social and political phenomenon that needs to be managed so that its benefits and burdens are allocated fairly throughout our nation.  The desire to live and work in our country, even without permission, is not morally blameworthy conduct (as seen in the condemnation of Arizona’s law by many religious leaders).  Moreover, illegal immigration simply cannot be deterred solely through the imposition of criminal sanctions.  Legal avenues for the immigration of unskilled workers, for example, are absolutely necessary in order to decrease illegal immigration.  Blurring the line between criminal law and immigration law does little to address our nation’s immigration problem, other than distracting us from the real solutions.