The Right Coast

Editor: Thomas A. Smith
University of San Diego
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Tuesday, April 27, 2010

Arizona madness
Tom Smith

There is much controversy over the new Arizona state law that makes it a state crime to be in the state illegally under federal immigration laws.  This is one of those cases in which one of my knees jerks one way and the other knee the other.  It is symbolic of a free society that the people there (legally anyway) do not have to carry papers around with them and prove to the police their lawful status.  Not for nothing is the demand for "Your papers!" (in German or French or Russian) redolent of the worst abuses of European style police states.  I don't blame people for being alarmed at this law.

But on the other hand, it does seem that things in Arizona have gotten completely out of hand, for the simple reason that the federal government is not maintaining anything like a secure border with Mexico. I live just a ways, maybe 15 miles or so north of the border.  I try to follow the news about what is going on in northern Mexico, and now, it is all about the drug war.  In the course of this war so far 22 thousand people have been killed.  Assassinations of police and anybody else, including family members, are routine.  And it's not just criminals killing each other.  A boy who had been at my son's high school, from a wealthy Mexican family, was murdered when he attempted to flee from kidnappers.  Children are kidnapped and sold into sexual slavery.  If you think, oh, all this stuff about Mexico spinning toward anarchy is exaggerated, you're wrong.  It is a society that is in a very bad way.  Worries that Mexico may become a failed state do not seem misplaced to me.  Evidently now some of this criminal culture is seeping into Arizona, and drug and human trafficking organizations are establishing themselves there. Arizonans apparently perceive the situation as out of control, and how could they not.

Where I live, the U.S. Border Patrol is very much in evidence.  It is routine to see their green and white patrol cars and jeeps driving around or parked in strategic locations, on the lookout for vans full of illegals.  You often see them making arrests at the side of the road.  You get the impression that they are on it, and you feel secure.  When the border fence was being constructed, however, there was a time when through my part of the East County was the quickest way into the US.  For a while, things seemed out of control.  You could see strings of illegal migrants walking through the mountains behind my house, sometimes being chased by helicopters.  It was a bad feeling, one I suspect many Arizonans have now.

I gather that illegal immigrants are responsible for a wave of violent and property crime in Arizona.  I would like to see some real numbers on this, but I certainly don't find it hard to believe.  If this is the case, it seems to me the state has a responsibility to do everything it legally can to stop this crime and protect its citizens.  I don't doubt that if Eugene Robinson or any of the others screaming about the Arizona bill lived in the path of this problematic migration, their views would be a lot more nuanced.  I bet they live in really nice neighborhoods where they don't need to worry about being burglarized.  Of course the police can't be going around demanding proof of legal status from every Hispanic person they see.  But fear of offending people is no justification for failure to provide basic security for citizens against foreign invasion, not by an army in this case, but by people too many of whom are ready to inflict serious harm on others.  I have the impression critics of this law have not gotten their heads around what a breakdown in law and order amounts to and how grave this situation is.  On the other hand, there are plenty of civil libertarians who see content to hand over African-American neighborhoods to drug traffickers in the interests of protecting the rights of criminals, so maybe that's not it.  It should go without saying, but I will say it anyway, that I am talking here about illegal immigrants who come into the US and commit crimes.  I am not talking about people who are here legally to work, or even about the middle category of people who are here illegally but make a net contribution to society by working and paying taxes.  This last category presents are really problem for immigration policy and for places like Arizona.  Somehow the criminals have to be sorted out from the productive members of society and something reasonable and humane figured out for the latter group, and what this would be, I don't know.  But the difficulty of figuring this out should not mean letting Arizona revert to a lawless frontier while we ponder and argue.

It does strike me as nuts that with the billions we are spending propping up GM and promoting democracy in Iraq, not to mention all the money we are just wasting, we can't put enough boots on the ground and choppers in the air to make the southwest of this country, which is part of, you know, the union, secure.  Maybe this law that Arizona has passed will serve as a wake up call to the feds.  Or maybe Arizona will serve as an experiment in the laboratory of federalism about how states can provide basic functions when the federal government is unable or unwilling or perhaps in the future too broke to do so.

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Comments

Tom, this is a really well-written and thoughtful essay on the issues around the Arizona law.

Posted by: Tung Yin | Apr 27, 2010 3:54:57 PM

I agree that it's a good post and a serious problem. Having the cops ask people to show their papers is un-American, but it's not as though people in Arizona don't appreciate that fact. It's just that they, unlike the hand-wringers in the press, actually have to deal with the crime problem, and they don't have any good options. There does seem to be a strong case here for either direct federal involvement or federal subsidies to support state institutions.

Posted by: Jonathan | Apr 27, 2010 9:43:55 PM

Having cops ask people to show their papers is un-American? I think that's an odd sentiment, given that law enforcement officers routinely ask U.S. citizens for their identification during traffic stops, for example, and do so often enough in other situations as well. As someone who occasionally travels to the Rio Grande Valley region of Texas, I'm also accustomed to Border Patrol agents inquiring abut my citizenship at the inland Sarita checkpoint. So I do not understand why queries about citizenship or requests for identification, under appropriate circumstances, are un-American. Indeed, it is my understanding (though I disavow any expertise) that aliens are required by law to have their papers on them at all times. See 8 U.S.C. 1304(e) ("Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) of this section. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both."). What is the point of Section 1304 if law enforcement officers cannot request to see these papers? There may be reasonable grounds for opposing the Arizona law; having not examined the measure in detail, I remain agnostic on the issue. But this talk of it being un-American seems off-base to me.

Posted by: The Curmudgeonly Ex-Clerk | Apr 28, 2010 8:59:15 AM

A lot of things that American police agencies do these days seem un-American to me but maybe I'm out of step with the times.

I don't see anything wrong with cops inquiring as to the immigration status of the people they arrest. I think it would be a good idea routinely to deport (after imprisonment) non-citizens who are convicted of serious crimes. The problem with the new AZ law, as I understand it, is that it seems likely to create strong incentives for police to gin up "reasonable suspicion" in order to demand ID from anyone who looks like a possible illegal immigrant. This is a large proportion of the population. It may be that in practice police will use reasonable discretion most of the time, but it seems to me that this law puts them in a difficult situation and will inevitably lead to many demands to show ID that are based essentially on crude and mostly inaccurate profiling, as well as on their reading of local political sentiments. If the law is enforced assiduously it will antagonize many innocent citizens, and if it's not enforced assiduously it won't do much good other than as a political statement. I don't think it's a good idea to pass laws for the purpose of making statements, and I think it would be better if the feds and the AZ govt could work together to implement serious border security. Unless and until that happens I suspect that the new law will be enforced gingerly, because of all the scrutiny that will be applied, and therefore won't do much good. But maybe I am wrong.

Posted by: Jonathan | Apr 28, 2010 7:39:36 PM

I think you genuinely may be out of step with the times. I do not mean that in a pejorative fashion; but, simply as a descriptive matter, there's nothing remarkable about law enforcement officers questioning persons properly detained about their identity and immigration status even in the absence of an arrest. See, e.g., Muehler v. Mena, 544 U.S. 93, 100-01 (2005) (unanimously reversing Ninth Circuit and holding that it was not a violation of permanent resident's Fourth Amendment rights to question her about her immigration status during detention, notwithstanding fact that permanent resident was not arrested and eventually was released). As a constitutional matter, such questioning is not controversial.

I'm more sympathetic to the concerns you raise about profiling. Of necessity, concepts like reasonable suspicion are very flexible and an unfortunate downside to this flexibility is that it can be abused. But my concerns in this regard are tempered for a couple of reasons. First, everyone's interactions with law enforcement officers are governed by this legal standard; it is not a sui generis construct devised for this particular immigration-related context. Officers know its boundaries and constraints well, and its general application does not seem to have resulted in tyranny.

Second, I think that the potential for abuse premised on ethnic or racial amimus probably is less than one might think for the very reason that you think it likely: the population that ostensibly might look like an illegal immigrant is quite large. Arizona is somewhat like Texas in terms of demography; U.S. Census Bureau estimates for 2008-09 place the Hispanic and/or Latino population of both states at about one third (30.1 percent in Arizona and 36.5 percent in Texas). If Arizona is like Texas, the percentage of the population that is Hispanic and/or Latino rises as one gets closer to the border. I think the two states probably are alike in this regard. For example, in Brownsville, Texas, which is right on the border, the percentage rises to 91.3 percent (based on 2000 data). Though Nogales, Arizona, which also is on the border, is much smaller than Brownsville, the percentage also rises significantly there -- to 93.6 percent (again based on 2000 data). My experience in Brownsville was that the demographic make-up of law enforcement mirrored the local population, and this seemed true of the Texas border region in general. If that's equally true in Arizona, then many (perhaps most) of the officers charged with enforcing the new state immigration law in the volatile border region will themselves be of Hispanic and/or Latino origin. For this reason, I think that profiling concerns are somewhat diminished.

But these are surface impressions based on just a little data and reflection. I could be wrong.

Posted by: The Curmudgeonly Ex-Clerk | Apr 29, 2010 10:10:05 AM

We shall see. Your point about how the demographics of the police probably match those of the local population is well taken.

My perspective on this issue is framed not by law, about which I have no expertise, but by my opinion that police already have too much authority to detain people. So, yes, I am out of step with the times. The new Arizona law may indeed be effective against illegal immigration and against illegal-immigrant criminals in particular. However, I suspect that a robust border fence would achieve the same ends with fewer direct and indirect (slippery slope) civil-liberties costs.

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