Wednesday, May 19, 2010

Arizona's Immigration Bill: 'Racial Sin' or Liberal Spin?

What is with all the controversy over Arizona's immigration bill SB 1070? I'm a law enforcement officer relocating to Arizona next month, so I figured I should read this bill for myself. After all, unlike the 1,100 page health care bill, it's only 15 pages long.

The primary charge by critics is the deprivation of civil rights. Since the bill's passing, we've all heard of public outcry from immigrant groups as well as boycotts by cities like San Francisco and Los Angeles. Liberal Christian and Sojourners founder, Jim Wallis, has gone as far as calling for all Christians to blatantly violate the new law. Despite threats to sue Arizona, at least two leading White House officials who voiced their opposition to the bill admitted they haven't even read it. So, before I decided how Christians should respond, I read it myself.

The text of the bill begins by laying out the specific way in which the bill is to be implemented. Despite the claim by Jim Wallis, in a Huffington Post article that the bill "would require law enforcement officials in the state of Arizona to investigate the immigration status" or "all law enforcement officers will be enlisted to hunt down undocumented people," nothing in the text even implies as much. The bill doesn't require law enforcement to do anything. In contrast, the bill specifically requires what law enforcement is NOT to do. You'll find it's actually pretty restrictive.

First of all, the bill explicitly forbids any law enforcement officer enforce this law unless ALL of the following conditions are met:

  1. Lawful contact is already engaged between the officer and the individual
  2. There's reasonable suspicion (a well established objective legal criterion used for police action) that a person is an alien unlawfully present in the U.S.
  3. Enforcement must protect the civil rights of "all persons" and respect the privileges of US citizens.

The bill directs how an officer is to obtain the individual's immigration status. Remember, we only get to this point if conditions 1-3 above are met.

  1. Reasonable attempt to determine the immigration status of the person, but only "if practicable."
  2. This verification must only be made in accordance with the pre-existing federal law which already requires federal authorities provide immigration status information to local law enforcement.

Next, the law restricts law enforcement from arresting anyone in violation of this law with an even more stringent criteria: probable cause. This standard is the very same level of proof required of law enforcement to make arrests for crimes in every state.

So what is the penalty for violating this law assuming someone is detained after all the above conditions are met? Actually, it's just a misdemeanor. Having witnessed the federal and state systems at work, I can tell you not everyone who gets arrested for a crime is charged by prosecutors. And for those who are, almost no one is convicted of the charge they were arrested for and sentenced at the maximum penalty described in the law. Virtually all defendants enter a plea bargain resulting in reduced sentences, especially for first or second offenders. Even if a radical judge overrides the plea agreement or the person goes to trial and looses, it's still just a misdemeanor. The bill actually limits the amount of court costs the convicted person is liable for. The person can only be charged with a felony if they are trafficking dangerous weapons, possessing illegal drugs, smuggling human beings, or committing another serious crime. I have yet to hear any complaints about this part of the law.

In fact, it's unusual to hear anyone object to the bill's particulars at all. The common negative reaction tends to be that of generally dismissing the bill as a whole. But why? After reading how restrictive this is for law enforcement, I want to know exactly what part is causing all the controversy. Jim Wallis seems to think it's anti-Christian. While it's difficult to see what parts he's critical of (because he never cites the sections), he does make some specific complaints. Since this relates to the moral responsibility of Christians, this is where I will focus for the purpose of this blog post.

Wallis warns Hispanics, or people with "brown skin" to carry their wallets to work, implying that anyone who appears to be Hispanic could be arrested if they aren't carrying proof of legal residency. A Hispanic deputy friend of mine in Tucson similarly joked when he heard I was moving there by jesting, "Be sure to bring your papers!" Wallis goes as far as comparing this to Nazi or Communist oppression, and he isn't trying to be funny.

The big problem with this objection is that it ignores the constitutional requirement that we are all innocent until proven guilty. No matter how guilty one really is, it's not up to us to show we're innocent, but rather the burden is on the police to show we're not. To borrow a common philosophical catch phrase, absence of evidence (immigration papers) isn't evidence of absence (illegal residency). As explained above, the stringent restrictions requiring law enforcement to show evidence that probable cause exists (greater than 50% likelihood) that the person is illegally present in the U.S. falls upon them. No one has to show papers to anyone. Our culture values freedom so much that we would rather err on the side of innocence than convict the wrong person. The Rodney King and OJ Simpson trials are memorable examples of this.

Ironically, the judicial branch of the government has already had their say on this issue. In the 2005 U.S. Supreme Court case Muehler v. Mena, the court ruled much more radically than Arizona's legislators did. In the majority opinion, the court wrote “the officers did not need reasonable suspicion to ask Mena for her name, date of birth, or immigration status.” In other words, the supreme court has already reviewed a case where this was presented and gave police more freedom to question people of their immigration status than Arizona does.

Wallis's next complaint is that we can be arrested for "simply being with people who are undocumented." Using the illustration of driving immigrant families to work, he's clearly referencing the section on page 5 forbidding the "transporting, moving, concealing, harboring, or shielding of unlawful aliens." This applies only to those who transports AND "knows or recklessly disregards" that the people are in violation of law. Can we agree with Wallis that this a bit too harsh?

I understand part of his concern here. We Christians are called to minister to people who need to hear the gospel. But there is an underlying assumption smuggled inside this objection showing it to be somewhat disingenuous. Wallis assumes that intentionally violating federal immigration law isn't wrong. Would Wallis have the same complaint if a new law outlawed transporting someone to church knowing that they are carrying endangered animals or counterfeit $100 bills which are likewise federal statutes not typically enforced by local police? Of course we need to follow God's command to spread the gospel to everyone, but the evangelism isn't the issue here. Knowingly cooperating with criminal activity is what we're talking about. In this case, the crime is presence in the country. Wallis's disagreement with the law doesn't mean he can violate it because he's sharing the gospel. We must address the main issue first.

While the act of transporting, by itself, doesn't sound criminal, we need to consider the context of the crime. For example, driving to drop your kid off at school doesn't seem like something we should be arrested for. But if you ask the same question in the context of a crime - such as driving while intoxicated - driving a child to school is no longer an innocent act. Likewise, anyone transporting illegal immigrants is involving themselves in the crime itself. If Wallis has a problem with the law, he needs to face it head on rather than distract us with a story of taking someone to church. Besides, if we recall the strict criteria in the text of the bill, law enforcement has to already be engaged in contact with you. In other words, you have already given police a reason to suspect you of doing something wrong!

The major problems illegal immigration has brought to Arizona shouldn't be ignored. Women and children are often exploited by those desperate to come to America. Stories of people found dead in the desert or locked in storage containers reminds us of the tremendous hazards involved in crossing the border illegally. For the past few years, Phoenix has led the nation in kidnappings which almost exclusively relate to human or drug smuggling operations by non-U.S. citizens. The extensive anti-terrorism screening undertaken at our ports is useless if we ignore those coming into our country by land. Sadly, not all the people coming to the US come with noble intentions. Allowing this to continue surely can't be the Christian thing to do.

There is also a penalty to those who work legally in Arizona among citizens by birth or the legal immigration process. For every legitimate dollar earned, legal residents are taxed on that income while the illegal worker keeps all their wages. Further more, immigrants receiving undocumented income even benefit from government subsistence programs paid by the resident's taxed income, especially while such programs are forbidden from asking immigration status. Additionally, each taxable dollar also brings the legal worker closer to the eligibility threshold for government social programs while the illegal worker qualifies for many social programs because their actual income is hidden. As long as illegal immigration continues unenforced, there will remain a cost of being a Christian who tries doing things the right way.

Wallis claims this law will serve only to cause more division among communities in Arizona. He cites immigrants who report raids by agents in helicopters and who fear their churches will receive the same kind of enforcement without compassion. Complaining that such action is immoral, Wallis remarks that it's now become "illegal to love your neighbor in Arizona." Citing Scripture, Wallis says Jesus wouldn't have treated people this way. Wouldn't he?

Anyone reading the accounts of the life of Jesus in the four gospels can see God's compassion in the person of Jesus. Jesus would certainly have compassion on immigrants as he would for anyone in need. Here I agree with Wallis in the sense that Jesus would have compassion on families struggling to find a better way of life, even those who come across the border from Mexico. But why stop there?

Jesus would also have compassion on those coming from Honduras, Ecuador, Cuba, Haiti, India, Thailand, Afghanistan, Sudan, and Uganda. If our standard is going to be compassion as Jesus would have compassion, what's our basis for giving preference to those with the means of traveling here? What grounds do we have for discriminating against those who cannot be here because of financial, political, or geographic hardships? If we are going to base our civil law on the basis of who Jesus included in his kingdom (which is the true context of the verses Wallis used), then we need to step up and provide transportation to the 4 billion needy people who would have a better way of life in America. The obvious problem is that this would be impossible. Even if we could afford it (by borrowing more debt), the burden would be too great. The impact would lessen conditions for all of us so it would be like jumping from a life raft into a sinking ship. So as nice as it would be to invite all to the banquet as Jesus does for his infinite kingdom, the objection just doesn't work in our limited world.

Lastly, Wallis says,

I think that means that to obey Jesus and his gospel will mean to disobey SB 1070 in Arizona. I looked at the governor's Executive Tower and promised that many Christians in Arizona won't comply with this law because the people they will target will be members of our "family" in the body of Christ. And any attack against them is an attack against us, and the One we follow.

As we've seen in examining the text of the bill and in the failure of Wallis's objections that we are far from justified in ignoring this act of democracy. Perhaps there are improvements to be made in our current immigration policy, but we have to face circumstances as they are, not as they should be at some point in the future. Until those changes are made in the civil discourse of the legislative process, we must "give to Caesar what is Caesar's" because we are called to something greater as the children of God.

4 comments:

Anonymous said...

I find this article a bit interesting. The author says "Our culture values freedom so much that we would rather err on the side of innocence than convict the wrong person. The Rodney King and OJ Simpson trials are memorable examples of this". Our issue with this immigration law is not that american citizens are going to be convicted of being in this country illegally. The issue is that for the simply fact that I happen to be "Hispanic" I am going to be harassed. On the article you also mentioned that "There's reasonable suspicion (a well established objective legal criterion used for police action) that a person is an alien unlawfully present in the U.S." before that person is question. And that is open to interpretation and will simply lead to racism.

Now never mind that.. In fact for the sake of argument disregard everything i've said so far. you say "Knowingly cooperating with criminal activity is what we're talking about. In this case, the crime is presence in the country. Wallis's disagreement with the law doesn't mean he can violate it because he's sharing the gospel." Ok so we get your point.. if we break the law we should be punished for it. So that probably means that since bibles are prohibited in many countries, then maybe we should stop sharing the gospel in those countries? I mean we should not be anything illegal right? we are breaking the laws of those countries just like illegal immigrants are breaking the laws of this country...

You talk about illegal immigrants not paying taxes. Let me tell ya something, most illegal immigrants I know do pay taxes... now you may ask, why on earth would they do that? simple most of them are waiting for the opportunity to be legalized and want to have everything in order when the opportunity comes. Now most of them use a fake social security card to work in the country. Of course they federal government still takes money for every pay check. where does that money go? The government keeps it! simply because the social security number being claimed does not exist.

lastly you end the article with "we must "give to Caesar what is Caesar's" because we are called to something greater as the children of God". In a sarcastic way, Id say I agree lets turn in all those missionaries breaking the laws of foreign countries!

Dan Grossenbach said...

Don't worry, anonymous, reasonable suspicion isn't open to interpretation after all (see Terry v. Ohio for the objective criterion used by the courts since 1968 and the 2005 Muehler v. Mena case relating to this very issue). Law enforcement officers who discriminate based on race (a protected class) are subject to disciplinary, civil, and even criminal penalties including the new Arizona law itself! Most uniformed officers have name badges, so just remember their name and you could be in for a nice pay day if you're right about this law. But don't worry, border agents have been making distinctions between citizens and non-citizens for hundreds of years so it's a pretty established system. How many US citizens can you name who don't know English, the hospital they were born at, or the president at the time? Even if you can name one, there are plenty of other ways to gain the standard of evidence required without resorting to racism. Reasonable suspicion is just too easy to get without having to resort to racism. It simply won't be a problem.

In reference to taxes, stealing social security numbers is an interesting defense of ethical behavior. If they are stolen from a US citizen, wouldn't the victim have earned a living and paid taxes in their place? I'm not sure where this gets us. Besides, if someone has to steal a SSN, what kind of income taxes are we talking here? You have to earn a pretty good wage to offset the benefits you receive considering the amount of government programs today. What's the average annual tax bill for these people you speak of?

Your reference to the prohibition of Bibles from other nations begs the question just like Wallis did in his article. By making this comparison, you are already assuming illegal immigration isn't a just law. There's no argument given, just an assertion. I agree banning scripture in communist countries is wrong, but what does that have to do with the law we're debating? The fact that both are "laws" is the only similarity but surely there are laws that are more ethical than others.

Aaron Brake said...

Dan,

A friend of mine left the following comment on facebook regarding your article. Thought you might find it interesting:

Lawuful contact..lol..that means very little sometimes....

"Nothing" about the law "implies" folks will be hunted down...that's just untrue... knowing racial profiling is real makes it clear to me that while I can't judge intent certain law enforcement expressins do produce bad decisions. Probable cause and reasonable doubt statues help perpetuate... See More that racism....you ever wonder who gets doubted most often and why?

While the law says it "protects" legal civil rights...it saying it does not guarantee it will...like laws before it, it will not erase institutional racism for our citizens and that includes me.

For that reason conditions 1-2 are easy to to ignore...

Also, "practible" sounds about as ambiguous as the other expressions above. Plus this federal law doesn't take into account push pull factors of immigration brought by globalization specifically trade defecits and exploitation of the third world to begin with ..so law is awesome and needed for a society to live in an organized and Godly way but all laws aren't correct federal or not...i.e Jim Crow..

This law is not looking to fix or mitigate an issue...there are millions of people here already...all it does is crate a read scare type of society...I thought MaCarthy died a long time ago...there is absolutely no way this law is correct..folks hate immagrants huh?...go back to wherever you came..chances are you are too..ohh you just hate hate the illegal ones.. ask a native American who's an illegal..

The "immigrations debate" is a power play keeping working class immigrants & the middle class fighting over crumbs while the top 1% own over 70% of the wealth & are getting richer. They shipped jobs overseas to get richer & subsequently exploiting others b/c the New Deal protected us. Workers in those nations come over because trade defecits leave their economies broken and corporations (many Am.)are deregulated not giving them any protection. Ppl come over for that & b/c of civil wars we helped create i.e El Salvador.They got us fighting over crumbs leaving half our middle class confused..,sad...I love my country but SB1070 is wrong!

Dan Grossenbach said...

Most of the concerns raised by this Facebook commentator are either irrelevant to my post or addressed in my answer to the anonymous writer above, namely, that reasonable suspicion is too easy of a standard to resort to racial profiling. There's just no need. Someone speaking a foreign language, driving without a license, or even the way people dress can all be enough to ask for immigration status and none of these matters concern civil rights. Going by skin color or race alone is too hard because our culture is so diverse. As I mentioned earlier, our border agents have had a couple hundred years of practice making this distinction within the bounds of constitutional protections.

Civil rights are already protected on both state and federal levels so I'm not sure what else we can do. In my opinion, assuming police will abuse their power in advance is unwarranted prejudice. However, cops are human and surely have already violated rights in the past. So if it happens with this law too, the officer risks his job, reputation, assets, and even freedom. I'm not sure what else we can do to safeguard civil rights other than ignoring immigration law altogether. But by doing so, we would create a far greater harm.

I agree that racial segregation is wrong and it was wrong for the Supreme Court to rule as they did in regards to racial segregation. Are you saying that the federal immigration law is also immoral? I thought we were talking about the new Arizona law. The only reason I mention the Supreme Court is because it shows Arizona to be stricter than the federal government. In fact, Arizona's SB1070 is the strictest immigration law in the country! That fact alone doesn't make it right (Virginia might have had the strictest slavery laws too). But it seems disingenuous that the protests are focused on Arizona while silent against the federal law.

I'm baffled why people have a problem with immigration laws. Can you imagine what would happen if we invited everyone in the world to move to America without our ability to determine who is a citizen or not? Surely even the immigration advocates agree that countries have a right to regulate who can receive tax-payer provided services (roads, police, fire, hospitals, etc). While visiting our country last week, President Calderon defended Mexico's immigration laws which are far more radical than ours.

I think the way our leaders have carelessly been spending money gives the impression we have money to spend. But simple math tells us we need many more of those 1% rich people you refer to to cover the millions (immigrants and citizens alike) who are receiving the benefits. As it stands now, every American (including children) owes $31,000 for our nation to break even from our debt. If you think SB1070 is wrong, please give an example of a moral immigration law that can be enforced without bankrupting us or violating our civil rights.