Arizona's Immigration Bill

The complete text of Arizona's strict new immigration law, AZ Senate Bill 1070, is available here, in pdf format. It is in 12 sections, the last of which indicates the title of the bill to be "the Support Our Law Enforcement and Safe Neighborhoods Act." The following summary of it's contents does not include any subsequent amendments; it is only a summary as the bill as originally passed and signed.

1. Intent - states that the bill is intended to unify immigration enforcement across federal, state, and local jurisdictions and to fight illegal immigration.
2. Enforcement - amends state law to provide that:
   1. Sanctuary cities and other inconsistent immigration enforcement within Arizona is banned.
   2. AZ state cops will make "a reasonable attempt" to verify citizenship status "where reasonable suspicion exists" and "when practicable" "for any lawful contact." [see definitions]
   3. If an illegal immigrant convicted of any state or local crime is to be turned over to ICE (Immigration, The Feds).
   4. Unless banned by some other law, AZ police "may securely transport" illegal aliens to Federal custody.
   5. State cops "may" arrest any individual if there is "probable cause" of some deportable offense without a warrant. [see definitions]
   6. Unless banned by federal law, state officials or agencies cannot be prohibited from handling immigration status information to determine eligibility for public services, licensing, determining residence, confirming a detainee's identity, or determining compliance with federal immigration law.
   7. State and local agencies that adopts a policy of immigration non-enforcement can have that policy challenged by anyone in state superior court. Punishments, at the court's discretion, may include paying for the trial costs and/or a fine of between $1,000 and $5,000 per day.
   8. Money collected from such fines pays for the Gang and Immigration Intelligence Team Enforcement Mission (GIT EM), a state law enforcement agency.
   9. If an officer was just following orders in breaking this law, the punishment goes to his agency.
   10. Enforcement of this law must comply with federal law, especially civil rights and due process laws.
3. Trespassing - amends state law to provide that:
   1. Illegal aliens on public property are trespassing.
   2. Immigration status is to be verified by the feds in these cases.
   3. Those sentenced for this crime must stay constantly in custody until the sentence is served.
   4. They are also to be fined at least $500 for a first offense and double that for subsequent offenses.
   5. This money goes to GIT EM and to reimburse county jails for immigration enforcement costs.
   6. This counts as a Class 1 Misdemeanor, except:
      1. It's a Class 3 Felony if they had drugs, deadly weapons, or tools of terrorism in their possession at the time.
      2. It's a Class 4 Felony for a second offense or if the USA has deported them in the past 60 days.
4. Smuggling - A section E is added to state human smuggling laws stating that "any peace officer may" stop any vehicle if they have "reasonable suspicion" they are disobeying civil traffic laws while smuggling humans. [see definitions]
5. Solicitation for Employment & Harboring Aliens - makes it a Class 1 Misdemeanor to obstruct traffic in order to recruit day workers, or for people legally ineligible to work in the United States to solicit employment. Also, makes it a criminal offense to transport or harbor illegal aliens, or encourage illegal aliens to move to Arizona. Vehicles used to illegally transport illegal aliens must be impounded. It's a Class 1 Misdemeanor and at least a $1,000 fine, unless it's 10 or more aliens at once in which case it's a Class 6 Felony and at least $1,000 per person.
6. Employing Illegals - the AZ state laws making it illegal to employ illegal aliens are amended to include a means for employers to claim law enforcement tricked them into it (entrapment), with the burden of proof on the employers.
7. Employing Illegals Again - same as Section 6, but for a different version of the same law (Section 23-212 vs. Section 23-212.01). I don't know why Arizona law includes the same text twice, but the fact that it does required them to amend it twice.
8. Verifying Employment Eligibility - the AZ state law requiring employers to verify the employment status of new employees is amended to require the employer to keep those employment status records for the full term of employment or three years, whichever is longer.
9. Impoundment of Vehicles - amended to list harboring or transporting of illegal immigrants as a valid reason to impound a vehicle.
10. GIT EM - establishes Gang and Immigration Intelligence Team and Enforcement Mission as a state government agency that manages immigration enforcement funds.
11. Procedural Details - this law is intended to obey all federal laws, but if any part of it is found inconsistent with federal law the inconsistency of that part will not be construed to affect the rest of the law.
12. Names the bill the Support Our Law Enforcement and Safe Neighborhoods Act. What's that acronym, SOLE-SNA? SOLE-Safe? It's kinda awkward, and sounds isolationist.

Definitions

GIT EM

Gang and Immigration Intelligence Team and Enforcement Mission, the Arizona state agency established by this bill to handle the funding and finances of the new expense of this new state-level enforcement of federal immigration law.

ICE

Immigration and Customs Enforcement, the US Federal Government's immigration agency. Formerly the INS; Immigration and Naturalization Service.

Lawful Contact

This bill is famous for coining the term "lawful contact," since it didn't strictly have a definition before. It generally means "the kind of contact cops have with folks through official business", but Arizona had to pass another law defining the term more strictly in the face of public criticism of it's ambiguity. The amended version calls it "a lawful stop, detention or arrest." More on that when I cover the amendments in a later post.

May

If you may do something, you have permission but no mandate or requirement to. It's an option available to you, if you so choose.

Peace Officer

General term for any officer of any law enforcement agency, including police officers, parole officers, customs officers, court officers, corrections officers, etc.

Probable Cause

The amount of proof needed for police to arrest a suspect or for a judge to issue a warrant.

Reasonable Attempt

To make a reasonable attempt is to try but resist being fanatical about it. If it's not doable, fine. Move on to something else. "Reasonable" in the legal sense has it's basis in the 4th Amendment to the Constitution. However, the phrase "reasonable attempt" is in the common vernacular, not legalese.

Reasonable Suspicion

The 4th Amendment of the Constitution protects against unreasonable search and seizure. Reasonable suspicion is a legal term for the standard of proof necessary for a search or seizure to be allowable by the 4th Amendment, meaning that the cop must be able to articulate facts in court to defend his decision to conduct the search or seizure. It can't just be a hunch. [source]

Standards of Proof

Hunch

You think something is up, but you can't explain why. This is enough evidence to alter individual behavior, but is insufficient for any legal action.

Reasonable Suspicion

Enough evidence that you can explain why you are suspicious and most folks will agree that it looks suspicious. This is enough evidence for a police officer to conduct an impromptu search, such as frisking a suspect or pulling a car over, but not necessarily enough to enter a residence without the owner's permission or to arrest anyone.

Probable Cause

Enough evidence to be reasonably confident the suspect committed the crime. This is enough evidence for a cop to arrest a suspect, or for a judge to issue a search warrant. It's one of two requirements for a cop to enter a residence without permission (the other being exigent circumstances; it has to be an emergency of human health or life or the survival of evidence). It is not necessarily enough evidence to convict.

Without a Shadow of a Doubt

The evidence so obviously proves the claim that one cannot doubt it; it's clearly true. This is the standard of evidence for conviction of a crime.

The primary criticism of the bill is that allowing any peace officer with any reasonable reasonable suspicion of lapsed immigration status permission to investigate (by, say, asking for state ID) at any time qualifying under the vague condition of "lawful contact" lends itself to civil rights abuses both of immigrants and of Hispanics and other minorities likely to be suspected of illegal immigration. The rebuttal is that the "reasonable suspicion" must be articulable in court without any mention of race, color, religion, sex, or national origin, as a determination made on those grounds would constitute discrimination by federal law and, thus, are explicitly excluded by Section 2-J of the bill.

Another criticism is that it mandates officers to check immigration status. In rebuttal, the word "may" is used 19 times in the bill and it mandates agencies to allow their officers to check immigration status if they so choose, whereas only one section (2-B) requires an officer to do anything. Even then, what constitutes "reasonable suspicion", "a reasonable attempt", and what is "practicable" are, by practical necessity, left to the officer's personal judgment to varying degrees.

Another criticism is that it doesn't change the law enough to make any relevant change to Arizona's culture, as intended. Personally, I think establishing a new state agency, defining two or three new crimes, and synchronizing federal, state, and local enforcement is a substantial change and there will probably be some effect (even if it's just pushing illegal immigrants into neighboring states). I suppose the content of the amendments and the results of the backlash must be taken into account before I can be completely certain, though.

Obameter #181: Habeas Corpus Rights for Enemy Combatants

The phrase habeas corpus is Latin, meaning "You have the body." The premise is that one cannot be imprisoned for murder unless a murder has certainly happened: therefore, there has to be a body. It was originally used by the King or his representatives to ensure local governments were not impeding Crown business with false charges against Crown agents. Then it was extended to all subjects of the King, allowing the King to protect their rights (if he felt like it). When the 13 original colonies declared independence, they also provided the authority to demand formal, legal proof of habeas corpus to every citizen. It was a universal civil right only after a long evolution.

It is a central philosophy of criminal law everywhere the English Empire touched in it's imperial heyday. As such, it is one of the most universal legal principles there are: there can be no imprisonment without proof of a crime. That is what separates legal imprisonments from illegal kidnappings.

Except for prisoners of war. It is inherently entangled in the motivations of war to prevent captured enemy soldiers from ever again being about to fight against you. In ancient times this was accomplished by wholesale slaughter, or more beneficially by slavery, or more ethically by imprisonment. Even the Third Geneva Convention requires only allegiance to a government or an authority not recognized by the detaining power as reason enough to hold a person as a prisoner of war. And if there is any doubt as to whether a prisoner constitutes a prisoner of war, they are to be treated as one.

During the War in Iraq, the United States faced the phenomenon of "enemy combatants" for perhaps the first time. These are people who fight for the other side, but do not obviously fit the Geneva definition of "soldiers". Many such combatants were captured and held without trial by the US, often in Guantanamo Bay Detention Center, an American military prison on the island of Cuba.

Critics of the USA's handling of these "enemy combatants" argue that all prisoners are either prisoners of war or be civilians. "There is no intermediate status." I'm no legal scholar, but assuming that's true still doesn't guarantee enemy combatants habeas corpus rights. If they must be one, Geneva says "Should any doubt arise as to whether persons[ are prisoners of war], such persons shall enjoy the protection of the present Convention" ^[source]. Thus, Geneva says these disputed persons should be prisoners of war and have no habeas corpus rights.

That is not the reasoning given by the Bush Administration. Neither is it the reasoning given by the Obama Administration. But it is Geneva's reasoning.

Candidate Obama promised to restore habeas corpus to the enemy combatants, which is identical to declaring them civilians subject to due process. Since his election (May 21, to be precise), President Obama classified 5 fates for enemy combatants:

1. trial in federal courts (domestic civilians)
2. trial through military commissions in his superficially modified version of the Bush-era system (military criminals)
3. freed by the federal court decisions (free civilians)
4. turned over to other countries (foreign civilians)
5. no trial and no release (prisoners of war)

PolitiFact rules it as a compromise: the 5th group are not receiving habeas corpus rights.

This is a kind of reasoning called deconstruction: if you cannot determine a solution that works for all in a group, subdivide them into groups based on what decision applies. It forks from Candidate Obama's reasoning that all were civilians, instead treating enemy combatants as a complex and diverse group that needs further classification.

I completely agree with Obama's deconstructionist thinking: they are a diverse group. Humanity always is. By the same reasoning, I dispute the claim that there can only be soldiers and civilians. Humanity is more diverse than that. A good soldier can also be a petty criminal against civilian laws; should he be immune by reason of his military prowess? A good civilian may, in time of local unrest, fight to defend his land, family, or life. Civilian laws condemn his violent behavior, but he deserves military respect in proportion to his successes.

I do not consider any of these lines of reasoning infallible. Like all reasoning pertaining to reality, they are all flawed to some extent. Bush's reasoning is utilitarian: they must be kept out of the war, and this is the reasoning that will a accomplish that. Candidate Obama's is rejection: Bush was extremely wrong, so the opposite extreme must be right. Geneva's is committee authoritarianism: our committee agreed this is true, and thus all must concede it to be. President Obama's is perhaps the best of the four. It is a concession between a generalist's idealism and the harsh complexity of reality, an aspiration to do what is right for the combatants tempered by a necessity to do what is right for everyone outside of Guantanamo.

The promise was stupid, but the compromise is smart. I cautiously support Obama on this issue. He might just bring justice without abandoning security. He might, maybe, just manage to do it right.