The top two criminal law enforcement officials in Arizona have teamed up to arrest and prosecute illegal immigrants crossing the border into Arizona using a new state human smuggling law, and the courts agree. Arizona is the first state in the nation to pass a law against human smuggling.
Following the legal advice of Maricopa County’s tough on crime prosecutor Andrew Thomas, Maricopa County Sheriff Joe Arpaio began arresting illegal immigrants under the new law and referring them for prosecution. Since the enforcement began, 272 illegal immigrants have been arrested and charged. Twenty-three illegal immigrants and one coyote have pled guilty, and will serve jail-time before being deported. With a felony on their record, they will have a slim chance at ever entering the U.S. legally or obtaining U.S. citizenship.
Under Arizona’s statutes, the crime of conspiracy automatically applies to felonies unless specifically exempted by statute. After thorough legally researching the issue, Maricopa County Attorney Andrew Thomas provided a legal opinion to Sheriff Arpaio confirming that illegal immigrants caught using the services of a coyote to sneak across the border could be arrested along with the coyotes for conspiracy to commit human smuggling.
The County Superior Court has upheld the program, Alexander notes:Judge Thomas O’Toole of Maricopa County Superior Court issued an opinion on June 9, 2006, dismissing defense arguments that federal law preempted the state law, and noting that the states are only preempted from making law where specifically prohibited in federal law. O’Toole cited the U.S. Supreme Court decision De Canas v. Bica (1976), which held that California law penalizing employers for hiring illegal immigrants was not preempted by the exclusive federal law to regulate immigration. The Supreme Court opinion stated, “[This court] has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se preempted by this constitutional power, whether latent or exercised.”
The federal government has not made any law or regulation preempting the states from passing laws regulating human smuggling. Although preemption is an excuse frequently referred to by politicians, it is a red herring used to avoid debate on the merits of enforcing laws against illegal immigration.
Judge O’Toole was equally dismissive of arguments that conspiracy doesn’t apply to the crime of human smuggling. The defense argued that the legislature didn’t intend to apply conspiracy law to the new statute. O’Toole said this wasn’t true, and that the legislative history and plain language of the statute clearly supported application of the conspiracy law.
Defense attorneys and allied groups intend to appeal the decision. I think the county's policy is a very good one, and I hope that it will contine to pass muster as it moves through the courts.
4 comments:
It's certainly a very interesting legal strategy. I think I remember hearing something about it on NPR.
"...and it is only the outcry from the vast majority of flyover America that has begun changing the attitudes of our gutless politicians."
Oh, you mean the people who don't have to deal with, or spend money on, illegal immigrants? Flyover America would do a great deal to recapture its relevance if it would let those of us who actually have to live with and deal with things like illegal immigration do so without getting in our way.
Since Maricopa county has no more drug abuse, murder, gang activity, robbery, burglary, or speeding,and since the county jail has been empited of inhabitants, it is appropriate for the county sheriff to look to enforce the nation's immigration laws instead.
We have a black market in non-citizen labor, and as every free-market economist knows, the best way to close down a black market is to make the government regulations more complex and onerous.
Can we turn off the satire mode yet?
James Elliott wrote: "Flyover America would do a great deal to recapture its relevance if it would let those of us who actually have to live with and deal with things like illegal immigration do so without getting in our way." The U.S. Constitution makes citizenship, immigration, and border protection national issues by placing them under the purview of the federal government. Of course, if California should successfully secede from the nation, it could then attend to immigration issues however its citizens see fit.
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