Thursday, June 3, 2010

More Journalists Critical of SB 1070...

Please take a read of an in-depth article from It is a blog that prides itself on bieng non-partisan. They quote one of our bloggers on the racial pofiing aspect of the law.

The following is a brief glimpse of the story:

Browse > Home / Articles / Arizona’s ‘Papers Please’ Law
Arizona’s ‘Papers Please’ Law
It's not just a mirror image of federal law, and allows some profiling. But, in theory, no more than what the courts permit already.
June 3, 2010

We’ll leave it to others to decide whether Arizona’s new immigration law is a good thing or a bad thing — but here we try to straighten out some of the confusing factual claims. First, a quick summary. Contrary to what the law’s defenders often say, the new statute does more than merely mirror federal law. For example:

It’s a state crime for an illegal immigrant to apply for a job, or to solicit work publicly.
The law also makes it a misdemeanor for a citizen driving a vehicle to stop to hire anyone if that "impedes" traffic.
Citizens will be able to sue officials or agencies whose policies interfere with vigorous enforcement of federal immigration law.
On the much-discussed issue of whether the law permits or encourages "racial profiling," we find:

The amended law allows police to consider "race, color or national origin" when deciding whether to ask somebody for proof of citizenship, but only to the extent already deemed constitutional by the courts.
It remains to be seen how police will interpret the law’s anti-profiling language in practice. State officials tell us they have yet to work out what factors police should be trained to use to establish "reasonable suspicion" of illegal status.
Federal officials are open to criticisms similar to some of those being made about Arizona’s law. A federal manual for training state and local officials says they may consider whether a person has a "thick foreign accent" or looks "out of place" when deciding whether to ask them about their immigration status.
Finally, we examine a widely circulated chain e-mail written by an Arizona state senator who supports the law, and find her claims to be misleading. The violence against ranchers that she describes is real, but it is the work of Mexican crime cartels, not illegal immigrants.


Frog: "Reading helps you know what you're talking about."Recently, Arizona Gov. Jan Brewer posted a video that uses a frog puppet to mock critics of the state’s new immigration law for not having actually read it. We’re asked to sing along with the amphibian as he croaks, "reading helps you know what you’re talking about."

Well, we’ve read it (take that, frog!). Below, we try to address a few of the questions and misperceptions that seem to go hand-in-hand with the get-tough statute that targets illegal aliens.

According to a report by the Pew Hispanic Center, there were an estimated 500,000 illegal immigrants living in Arizona in 2008. The state wants that number to drop. In its first paragraph, the new law says that "the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona."

Doesn’t the Arizona law just mirror federal immigration law?

Brewer has responded to critics of her state’s law – commonly referred to as S.B. 1070 – by saying it replicates federal law.

Brewer, April 30: Our law mirrors federal law. So, why is it bad for Arizona to mirror federal law? No one was crying out in the wilderness about the federal law being wrong or racial profiling. I don’t get it. It’s spin.

To a degree, she’s right. Arizona’s new statute contains provisions that criminalize, at the state level, certain conduct that’s already a violation of federal immigration law. For instance, immigrants are required under both state and federal laws to carry their alien registration documents or other applicable records at all times – in federal law that’s under 8 USC sec.1304 and 8 USC sec. 1306.

Other parts of the state law, though, don’t exist at the federal level. They include section 5A, making it illegal for a driver to stop and attempt to hire or to hire and pick up passengers, if that action impedes traffic; for a person to get into someone’s vehicle in order to be hired; or for an illegal alien to apply for work or solicit work publicly in the state. Most of this is aimed at day laborers and those who hire them.

Another example: Section 2H allows any citizen to sue an official or agency in the state who "adopts or implements a policy that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law."

And section 2B of the new law requires law enforcement officers to try to check the immigration status of anyone they lawfully stop if they have "reasonable suspicion" the person might be an unauthorized immigrant. (More on this provision later).

But why the outcry? These people are here illegally, right?

There are plenty of features of the law that critics find objectionable. Among them are the penalties. Under federal law, violations of immigration statutes by someone in the U.S. illegally may in some cases be punished with a jail sentence but are often penalized by deporting the individual instead, if the government proves its case to a judge through a comprehensive set of procedures. Arizona, lacking the authority to deport anyone, will enforce jail sentences laid out in its new law for, say, failing to carry one’s immigration authorization documents or soliciting day work by the side of the road, said Mary Giovagnoli, director of the Immigration Policy Center, a pro-immigrants’ rights group. While the federal system is far from perfect (thousands of people are locked up in federal detention centers indefinitely awaiting deportation decisions), the addition of new immigration crimes at the state level with jail time attached isn’t the answer, she added.

Some Arizona police chiefs and other state officials oppose the law, in no small part because of the provision allowing citizens to sue them, as described above. Fans of that measure see it as a way to get authorities to enforce the law. But Phoenix Police Chief Jack Harris suggested it’s at best superfluous in terms of helping local law enforcement combat serious crime.

Harris, April 30: Proponents of this legislation have repeatedly said that the new law provides a tool for local law enforcement, but I don’t really believe that that’s true or accurate. We have the tools that we need to enforce laws in this state to reduce property crime and to reduce violent crime, to go after criminals that are responsible for human smuggling, to go after criminals that are responsible for those home invasions, kidnappings, robberies, murders.

He and some other Arizona chiefs say the statute could actually hurt their efforts to fight serious crime because they will have to devote time and resources to enforcing the immigration provisions. The law also will make illegal immigrants who are crime victims or witnesses more leery of cooperating with law enforcement, they predicted.

Perhaps the single biggest reason this law is so controversial is that immigration – like, say, foreign policy – always has been the purview of the federal government. The feds’ authority is rooted in Article I, section 8 of the U.S. Constitution, which gives Congress the power to "establish a uniform rule of naturalization." As a practical matter, said Kevin Johnson, an immigration law expert and dean of the University of California at Davis School of Law, it’s unworkable for states to have their own immigration laws, "just like states can’t have their own foreign policies." He noted that "the federal government is more inclined to consider the national interest." For that reason, Johnson believes that legal challenges to the law – several have already been filed, and the Obama administration is also considering a lawsuit – are likely to succeed under the federal preemption doctrine, which is based on the Constitution’s Article VI, clause 2. Known as the supremacy clause, it says that federal law shall bind "judges in every state" even if state law contradicts it.

At the same time, at least 22 other states are considering legislation similar to Arizona’s.

Does the law allow racial or ethnic profiling?

There’s been so much controversy about this question that the legislature went back and amended the law the week after it was signed by the governor. The final version requires police to try to determine the immigration status of any person who has been stopped, detained, or arrested and "reasonable suspicion exists that the person is an alien." Could reasonable suspicion be based on skin color or a Mexican accent? Here’s what it says:

Senate Bill 1070: A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution.

The unamended version said race et al., couldn’t be the "sole" factors. But the statute doesn’t detail what "reasonable suspicion" might include. And the phrase "except to the extent permitted" by the federal or state constitutions leaves even more ambiguity, because courts have upheld the use of race or ethnicity in some circumstances. In an annotated version of the law reprinted by The Arizona Republic, University of Arizona law professor Gabriel Chin writes that there are "many open questions" regarding whether race could be used in enforcing S.B. 1070. But he also said, "I am deeply surprised that anyone construes this law to prohibit racial profiling."

Ediberto Roman, a professor of law at Florida International University, goes even farther. "It’s pretext to try to suggest that there is no discriminatory purpose," he told us. "Given that there is a lack of any other basis in terms of how they’re going to enforce it, it’s pretty clear that we’re looking to focus on a particular target group."

Though the law only allows officials to ask for proof of citizenship in the case of "legal stop, detention or arrest," this doesn’t limit the questioning to suspected criminals — it can include those who are detained as victims of or witnesses to a crime, or people accused of violating local ordinances like noise laws or loitering laws. Roman is concerned that police will be more likely to both stop and to question those who they think look like immigrants. "The legislature was pretty careful in following criminal procedure notions, but it’s the discretion in how the law enforcement will use criminal procedure [that] is how the racial profiling comes into play," he said.

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