One of the most difficult problems with any discussion of the shift in federal deportation priorities is that people have no idea how it works or who we’re talking about. This isn’t accidental, as it became politically incorrect to call a person an “illegal alien” (“no person is inherently illegal”) in favor of “undocumented immigrants.” Now, all are wrapped up under the word immigrants, regardless of status, as if noting that some are here lawfully and some are not is a racist slur.
To drag someone out of the life they have painstakingly created over many years, for something as petty as traffic violations or shoplifting, is a gross violation of the proportionality principle — that the punishment should fit the crime. To execute longtime residents of the United States for traffic violations would clearly be a violation of their human rights. Human rights by their nature apply to both citizens and noncitizens alike. It is difficult to see why deportation for such violations is not also a human rights violation. How, then, have so many of us accepted these policies so at odds with our American values?
In an op-ed which conflates every conceivable distinction into a blizzard of ignorance, one detail is omitted from this appeal to emotion: no one is being dragged from their life because of a traffic violation or shoplifting. They are being deported because they are here illegally, and came to the government’s attention because they committed a violation of law, petty though the violation may be.
Don’t think they should be dragged from the life they “painstakingly created over many years”? Fair enough. Change the law to allow for such people to gain a path to legal immigrant status. This, however, is a completely separate question from the lies used to jerk tears from the passionate about collateral consequences of shoplifting.
And this isn’t just a matter of a monumentally disingenuous and deceitful New York Times op-ed by Jason Stanley, a Yale philisophy prof whom one would naturally turn to to better understand the legal ramifications of immigration law and policy. It has wormed its way into the Maryland state’s attorney’s office.
The Baltimore State’s Attorney’s Office has instructed prosecutors to think twice before charging illegal immigrants with minor, non-violent crimes in response to stepped up immigration enforcement by the Trump administration.
Chief Deputy State’s Attorney Michael Schatzow, in a memo sent to all staff Thursday and obtained by The Baltimore Sun, wrote that the Justice Department’s deportation efforts “have increased the potential collateral consequences to certain immigrants of minor, non-violent criminal conduct.”
There was a time when criminal defense lawyers railed against the collateral deportation consequences of a conviction for a legal immigrant, the “aggravated felony” lie (because it neither had to be aggravated nor a felony). These weren’t undocumented aliens, but people here lawfully, often since childhood, often with families and jobs and a life they “painstakingly created over many years.” Not that anyone cared, since it wasn’t about Trump.
No airport protests. No Times op-eds. No valiant sophistry to conceal the distinguishing details and conflate entirely distinct concepts and issues. No sad tears. Bah-bah, bad guys. The argument made then was that since they were going to be deported anyway, cut the sentence of forever plus cancer down to a more manageable decade before sending them back to a country where they knew no one, couldn’t speak the language and which they hadn’t seen since they were six months old. The court’s and prosecutor’s response was usually a shrug and nah.
But what is the upshot of this sudden concern for the severity of collateral consequences for those aliens who have no reason to fear the dreaded aggravated felony because any offense will do? Not because the shoplifting was so horrible a crime, because they were illegally present in the first place?
“Prosecutorial discretion exists in all kinds of cases, and it’s more education to [prosecutors] about the multiple factors that they should take into consideration as they proceed,” she said. “The consequences are different today than they were a year ago.”
So they get a free pass? Shoplift all you want, we’ll make more? But it’s not only defendants who are affected, as victims and witnesses also come onto the radar.
“In considering the appropriate disposition of a minor, non-violent criminal case, please be certain to consider those potential consequences to the victim, witnesses, and the defendant,” Schatzow wrote.
This adds another problem to the mix, that people will neither report crime, nor cooperate in its prosecution, if they lack documentation, for fear of deportation. They thus create a special class of “safe victim,” safely preyed upon.
Doug Berman points out that all this creates a perverse conflict between emotions and reality.
I do think the equation feels a bit different if and when we focus on foregoing certain criminal charges altogether for a certain class of offender because of the collateral consequences of deportation that could follow from any charges. Though I would be troubled by deportation always serving as the de facto punishment for, say, low-level marijuana possession, I also would be concerned about the deterrent impact (as well as the optics) of policies and practices that make it easier for illegal immigrant offenders to avoid charges for certain classes of criminal wrong-doing.
Stated somewhat differently, given that citizens as well as non-citizens can and often do suffer an array of profound collateral consequences even when charged with minor, non-violent crimes, I would like to see prosecutors in Baltimore and everywhere else regularly instructed to consider “potential collateral consequences” for all offenders in all setting when making charging decisions.
So does a citizen go to jail for the same conduct for which an illegal alien gets a dismissal? While it might be easy to say marijuana possession should be decriminalized, what about shoplifting? What about an illegal immigrant parking his unregistered, uninsured car in a handicap parking place? Posting a nude picture of her ex-boyfriend who cheated on her on the internet?
What’s a prosecutor to do? Should he prosecute crimes and violations or not? Should he put citizens in jail and let illegals go free to shoplift again with impunity? Should he ignore laws duly enacted by legislatures because actions have consequences? What about that equal protection the Constitution talks about? Don’t citizens get to enjoy that too?
There are infinite combinations of trivial offense, beloved by those who turn to the government to solve all societal problems by regulation and crime, that will do all that’s required to drag illegal immigrants from “the life they have painstakingly created over many years.” And still, legal immigrants who have been here forever can be sent to the mother country for the same low-level marijuana possession. And still, you don’t care. Have you run out of sad tears?
So hard not to go on a rant about the stupidity of all this…
People are stupid, Trump’s a buffoon. But let’s be clear, the plight of illegals is based #1 on the behavior of the illegals themselves (or their parents for children brought over under the age of 18), #2 on the Congress for kicking the can down the road for 25 years instead of fixing the problem one way or another (either side’s preferred solution would have been preferable to what we have now), #3 foreign governments who make such a cesspool of their country that escape is the only rational alternative (especially the ones who piss and moan about the unfairness of our system when their penalties for illegal immigrants is life+cancer) and somewhere further down the list, a clown of a President enforcing the laws on the books written by #2, on people who did #1 and sending them back to #3
Don’t hold back. No really. Short and sweet, but pretty much, yeah.
I have a public policy legal question on this topic. Should NYC funds be used to pay for a public defender for undocumented immigrants charged with a crime? de Blasio doesn’t seem to think so… even if NYC is a “sanctuary city.”
So much wrong in so few words.
1. These are comments, not questions.
2. This is off-topic.
3. Indigent defense in NY is required by Section 18B of the County Law, which is a NYS law. The mayor has nothing to say about it.
4. Since when does de Blasio not want money spent on the criminal defense of undocumented immigrants?
5. There is no such thing as a “sanctuary city.”
6. Even if there was such a thing as a sanctuary city, what does that have to do with Gideon?
7. Is there a reason why you’re having a question means you get to use my comments to ask it?
See?
I do. Thanks.
But since you raised it, now I have to ask: what makes you say de Blasio doesn’t want NYC money spent on the criminal defense of undocumented immigrants? Are you confusing the fund he’s trying to create to defend convicted illegal immigrants from deportation, except he only wants it to be used for the criminals he likes and not the bad criminals? That’s not about indigent defense, but deportation defense. It doesn’t involve providing representation in criminal court, but in immigration court after conviction.
Perhaps I misunderstood this article…
http://www.wnyc.org/story/mayor-says-city-should-not-fund-lawyers-immigrants-criminal-convictions/
Perhaps you did. And while it’s still off-topic, it does serve to note the hypocrisy of de Blasio’s good criminals/bad criminals progressivism. Apparently, some love trumps hate more than others.
Hey, wait a sec. You snuck your question in and got an answer. You are one tricky dude.
More Cohibas on order.
So, they couldn’t see how evil these disproportionate consequences were when a Democratic administration was quietly doing ten times as much of this. But, now that Trump is loudly doing a comparatively small amount of it, zamma, zamma, the scales fall from Baltimore prosecutors’ eyes. A regular epiphany. Can I get a “Praise the Lord”??
This is a natural extension of taking the attitude that illegal immigration is not really a crime. The problem with this attitude is that it leads to a wider acceptance of criminality for a certain class of people. This attitude comes from those institutions which shape popular culture (i.e., corporate, media and academia) and which serve big business and therefore have incentives to push for lax immigration in order to bring in more cheap labor. But the wider message is that we are not a society governed by laws but by feelings and popular causes. Millions of people enter into this country illegally and they must necessarily have less respect for the laws of this country for doing so. Of course, they are doing so in order to find a quicker and easier route out of poverty so that they can enjoy more material prosperity. Thieves and pirates think this way too. It would be more difficult for them to go through the legal process of immigration and even more difficult to stay in their home country and try to fix the problems of their country. This leads to another question: should we expect these people, who abandoned their own countries for a greater material comfort or freedom to be capable of making any real sacrifices for this country? Or will they abandon this country too when it is in their own personal interest to do so? But my main point is that if they didn’t have enough respect for our laws not to break them by entering this country illegally, why should we expect them to obey other laws when it is less convenient for them to do so? And by granting them a wide amnesty, aren’t we sending the message that are laws don’t really need to be respected?
Your lack of familiarity with the virtues of paragraph breaks notwithanding, you make a mistake common to non-lawyers. It is not a crime to be an undocumented alien. If seized, you do not get arrested, prosecuted, sentenced. You are merely deported, returned to the place where you came from. So the “attitude” that “illegal immigration is not a crime” isn’t “attitude,” but law.
As for coming here for opportunity and a better life, that’s why most of us are here, why our forebears hopped on over. It’s not a bad thing to want a better life. If it was good enough for us, it’s no worse for anyone else.
Sorry for the lack of paragraph breaks. Actually, I am a lawyer. I practiced immigration law for six years. So, yes, I do understand how the process works. And I’m pretty sure entering the country illegally is a crime. See Title 8, Section 1325 of the U.S. Code (U.S.C.).
[paragraph break – just kidding – I do appreciate it when people help me to be a better writer and I sometimes forget that writing comments on websites is “writing”]
As for your second paragraph, I think you conflating legal immigration with illegal immigration. Also, the type of mass migration that is occurring today is not like the immigration of previous centuries. Yes, people often migrate in search of a better life. As for myself, I was born here and my family has been here for several generations. On the other hand, there are several problems caused by the form of mass migration that exists today.
First, poor countries become poorer when their best people (i.e., their smartest people with the agency to be able to leave) leave their countries and move to countries that are already rich.
Second, mass migration creates social problems in the host countries as well. Recently, I read about an increases in street clashes between Turks and Kurds in Germany. Is Germany better off for this? Why would any sane society want to invited the world’s problems into their country?
We used to have enough sense to consider whether immigrants can easily be acculturated. We no longer consider cultural compatibility because we can not do so without being politically incorrect. Yes, there were problems caused by different immigrant groups in the past. But Irish and Italians etc., not withstanding that their religion was slightly different than the Anglo Protestants who built this country, could be acculturated after a generation. The differences in these cultures was not as great. And they wanted to assimilate for the most part. Also, there was social pressure to do so. This is no longer the case.
Multiculturalism, despite the mindless propaganda to the contrary, does not make for a more stable society. One can look to history for this or to the news. Our ancestors understand that unity makes for a stable society, not diversity. Some diversity is good, especially diversity of opinion. But a society made up of warring ethnic groups fighting over increasingly limited resources, is not a recipe for a stable society.
Third, the future economy of developed countries such as the US is one that has less use for manual labor. Increasingly, these jobs will be filled by machines. So what are all of these illiterate and uneducated people going to do here when they can’t get jobs? Live on welfare? Turn to crime? Join terrorist networks because they blame the West for all their problems? Not everyone will have the intelligence or agency to become a software engineer or a lawyer.
Yes, 8 USC 1325 is a crime. But that isn’t the same as being here without documentation. As an immigration lawyer, you should know this without my having to point it out. I didn’t read past your second paragraph, so you’re on your own after that.
Yeah, sorry that was kind of long. Anyway, I thought you made some good points in the article. I also like your blog.