{"id":9838,"date":"2010-05-03T21:15:53","date_gmt":"2010-05-04T02:15:53","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=9838"},"modified":"2010-05-03T21:15:53","modified_gmt":"2010-05-04T02:15:53","slug":"arizonas-big-mistake","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2010\/05\/arizonas-big-mistake\/","title":{"rendered":"Arizona’s Big Mistake"},"content":{"rendered":"

\"\"<\/a>Arizona recently passed into law provisions that make a person\u2019s illegal presence in the state of Arizona — currently a civil violation under federal law — a crime under state law.\u00a0 The Arizona law also provides for the arrest of persons where the police have a \u201creasonable suspicion\u201d that the individual is unlawfully present and where the individual cannot produce the proper documentation.\u00a0 Last minute changes\u00a0<\/a> 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\u2019s immigration status should only be asked as part of an investigation of non-immigration related violations.\u00a0 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. \u00a0<\/p>\n

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.\u00a0 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.\u00a0 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.\u00a0 The law perpetuates a trend by our elected officials, identified by Professor Jennifer Chacon <\/a>and others, that mistakenly conflates the criminal law with immigration law.\u00a0\u00a0The convergence between these two separate areas of the law began in the 1990s and gathered momentum after September 11, 2001.\u00a0 This process needs to be stopped and reversed.<\/p>\n

The recent convergence of the criminal law and immigration law can be observed in several areas.\u00a0 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.\u00a0 The recent shooting of a peace officer by drug smugglers in Arizona provides an example.\u00a0 Early news reports <\/a>cast the episode as an example of violence by \u201cillegal immigrants.\u201d\u00a0 The word \u201cimmigrant\u201d refers to someone who seeks to change their country of residence.\u00a0 Marijuana smugglers are not \u201cimmigrants\u201d 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.\u00a0 Allegations\u00a0that an Arizona police officer was shot by an \u201cillegal immigrant\u201d are not only inflammatory, they reflect a fundamental mischaracterization of what the word \u201cimmigrant\u201d means.\u00a0 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\u00a0<\/a>\u00a0that need to be addressed by a sensible system of immigration control.<\/p>\n

Second, since the 1990s Congress has increasingly expanded the list of non-immigration related crimes that trigger the subsequent deportation of aliens.\u00a0 The most notorious example of this is the \u201caggravated felon\u201d designation.\u00a0 The appellation \u201caggravated felon\u201d was originally reserved for aliens that committed serious crimes such as murder and drug trafficking.\u00a0 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.\u00a0 As a result, removal from the United States is now the consequence of virtually any non-misdemeanor criminal conviction (and even some misdemeanors).<\/p>\n

Third, there has been an increased prosecution of violations of the immigration laws as separate federal crimes, with harsher and more frequent criminal consequences.\u00a0 For example, illegal re-entry into the country, after having previously been deported, is now a crime punishable by incarceration.\u00a0 In addition, in the past decade Congress created the federal crime of \u201caggravated identity theft,\u201d which the Justice Department promptly applied to prosecute undocumented aliens.\u00a0 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.<\/p>\n

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.\u00a0 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.\u00a0 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.<\/p>\n

Less appreciated by critics has been the manner in which the convergence of these two areas of the law has worked in reverse.\u00a0 Last Thursday, I moderated a panel discussion entitled \u201cThe Intersection of Criminal and Immigration Laws: Padilla v. Kentucky and Other Recent Decisions of the Supreme Court\u201d<\/em> at the Annual Meeting of the Eastern District of Wisconsin Bar Association.\u00a0 The panel included Attorney Maria Baldini-Potermin, Attorney (and proud MU alum) Sara Dill, and AUSA Jonathan Koening.\u00a0 During our presentation, I was struck by how the Supreme Court\u2019s recent decisions in the Padilla v. Kentucky<\/em> and Flores-Figueroa v. United States<\/em> cases interpret criminal law and procedure in a manner that reflects the\u00a0influence of immigration law.\u00a0 [Interested readers can order an audio CD of the panel discussion here<\/a>.]\u00a0<\/p>\n

Decided just last month, the Padilla v. Kentucky<\/em> decision\u00a0<\/a> held that defense counsel\u2019s failure to advise a non-citizen of the immigration-related consequences of a criminal plea bargain violated the accused\u2019s Sixth Amendment right to effective assistance of counsel.\u00a0 The Supreme Court recognized that deportation has become \u201can integral part\u201d of the penalty that non-citizens face when pleading guilty to a crime.\u00a0 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 \u201csuccinct and straightforward\u201d under the immigration laws that the client should be informed prior to entering a plea of guilty to a criminal charge.<\/p>\n

Significantly, a guilty plea to criminal charges can lead to other types of serious consequences besides removal under the immigration laws.\u00a0 Criminal convictions can lead to civil commitment, civil forfeiture, loss of voting rights, loss of public benefits and loss of professional licenses.\u00a0 Does defense counsel also have a constitutional duty to advise clients of these consequences of a guilty plea?\u00a0 The Supreme Court\u2019s desire to help non-citizens make informed plea bargains may have implications for a great variety of citizen criminal defendants as well.\u00a0\u00a0\u00a0 \u00a0\u00a0<\/p>\n

\u00a0Flores-Figueroa v. United States<\/em>\u00a0<\/a> involved the interpretation of the federal \u201caggravated identity theft\u201d statute.\u00a0 That statute makes it a crime to \u201cknowingly\u201d possess or use \u201da means of identification of another person,\u201d with a mandatory two year prison term if convicted.\u00a0 Federal prosecutors were\u00a0bringing 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\u00a0whether the number\u00a0belonged to a real person or not.<\/p>\n

The Supreme Court ruled that the word \u201cknowingly\u201d should be applied to require proof both that the accused knew that they possessed the false ID and also that the accused\u00a0knew that the numbers on the ID card belonged to a real person.\u00a0 The Court was influenced by the fact that a failure to read the word \u201cknowingly\u201d to apply to \u201canother person,\u201d 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.\u00a0 Workers lucky enough to choose a number that had not been assigned to a real person could not be charged.<\/p>\n

It is not unusual for the Supreme Court to read a mens rea<\/em> 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.\u00a0 Examples of prior cases along these lines involve the Court\u2019s interpretation of statutes involving mail fraud, money laundering, and the \u201cinnocent\u201d possession of firearms.\u00a0 However, what is interesting about the Flores-Figueroa<\/em> decision is that the Court suggests that in the future it will assume that the word \u201cknowingly\u201d used in a criminal statute should be read to apply to all of the elements of the crime.\u00a0 If this is indeed a new canon of construction that the Court plans to\u00a0apply across the board in future cases, then the Court\u2019s sympathy for the plight of undocumented workers caught undeservedly in the criminal law may\u00a0lead to benefits for all sorts of criminal defendants.<\/p>\n

Like the Padilla<\/em> and Flores-Figueroa<\/em> opinions, the Arizona law is an example of the way in which two formerly separate areas of the law are increasingly blending into one.\u00a0 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.<\/p>\n

Arizona\u2019s 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.\u00a0 Nor is Arizona\u2019s mistake the embrace of racism, fascism or any other form of \u201cism,\u201d although there are\u00a0plenty of unsavory undertones lurking below the surface of this legislation.\u00a0 The real mistake behind Arizona\u2019s law is the knee-jerk assumption that immigration enforcement can be reduced to a criminal problem, rather than regulated under civil law.<\/p>\n

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. \u00a0As I argued recently on Wisconsin Public Radio<\/a>, 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.\u00a0 The desire to live and work in our country, even without permission, is not morally blameworthy conduct (as seen in the condemnation of Arizona\u2019s law by many religious leaders).\u00a0 Moreover, illegal immigration simply cannot be deterred solely through the imposition of criminal sanctions.\u00a0 Legal avenues for the immigration of unskilled workers, for example, are absolutely necessary in order to decrease illegal immigration.\u00a0 Blurring the line between criminal law and immigration law does little to address our nation\u2019s immigration problem, other than distracting us from the real solutions.<\/p>\n","protected":false},"excerpt":{"rendered":"

Arizona recently passed into law provisions that make a person\u2019s illegal presence in the state of Arizona — currently a civil violation under federal law — a crime under state law.\u00a0 The Arizona law also provides for the arrest of persons where the police have a \u201creasonable suspicion\u201d that the individual is unlawfully present and 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