Law enforcement discretion and SB 1070by Hugh Holub on Jul. 30, 2010, under border issues, politics, SB 1070
One of the constant issues supporters of SB 1070 have raised is that undocumented aliens are violating the law and thus the law must be enforced.
Here’s the problem. There are lot and lots of laws. Felonies are the big bad laws, misdemeanors are the little laws to break. The difference is seriousness of the offense and the amount of jail time and fines one can expect.
Chances are pretty good each and every one of us violates one or more laws every day… misdemeanors. You didn’t come to a complete stop. You didn’t signal to change lanes. You let your dog run loose in violation of a leash law. You put up a sandwich board sign in front of your business.
If every law on the book were attempted to be enforced with equal vigor, we’d have something that looked like a police state. The practical side of the situation is no local, state or even the federal government has the money to devote to enforcing every law on the books.
Law enforcement jurisdictions at every level prioritize where they will devote their resources.
If a community has a serious burglary problem, you will see more efforts focused on burglary. Rarely are you going to see many communities prioritizing minor misdemeanor offenses over felonies. Walking your dog without a leash is not going to land you in jail.
Given a choice, would you rather have your cops setting up road blocks to nab drunk drivers or illegal aliens? Unless you are willing to pay much higher taxes, you won’t get both.
One of the things SB 1070 attempts to do is prioritize use of local police to enforce immigration related laws. A key element of that policy is allowing citizens to sue local governments if they don’t think the local police are in fact devoting resources to enforcement of SB 1070.
That is actually a state court issue, not a federal court issue. We may see more about this later.
Maricopa County Joe Arpaio chooses to allocate his resources to immigration law issues. When you stop and think how little unincorporated area is left in Maricopa County, he probably doesn’t have enough to do. It is also obvious he relishes being in the political limelight with his tent jails, pink jail outfits and his immigration sweeps.
Other county Sheriffs such as Paul Babeu in Pinal County have jumped on Arpaio’s band wagon. Who outside of Pinal County ever heard of Babeu before he started playing Arpaio’s game?
There is also the issue of jail and prison capacity. On any given day there are just so many beds available on the county jails. Who do you want occupying those vacant beds? Wife beaters or illegal aliens? It costs taxpayers money for every prisoner in jail. That’s why there are a lot of “field releases” for minor offenses…local authorities simply would rather spend money jailing dangerous people instead of people cited for being illegally in the country.
In the past, most every lawq enforcement jursidiction in the state bounces suspected illegal aliens over to ICE or the Border Patrol so those agenmcies have to pay for incarceration. A lot of suspected illegal aliens who are not also suspected of committing other crimes are also “field released” or voluntarily deported because the feds don’t have the jail capacity to hold everyone they catch.
One of the issues Judge Bolton noted in her opinion was the potential for SB 1070 to overwhelm federal resources for determinging immigration status and detention capacity.
When one demands the state enforce federal immigration laws, it would be wise to add what laws you do not want enforced due to the limited resources of our law enforcement agencies. The cops can’t be everywhere.
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Prosecutors have absolute discretion which cases to take to court and which not. Ths is called “prosecutorial discretion” in the law enforcement sector.
The first reason for this is simple…too many crimes and not enough time. This is why there is so much plea bargaining in the criminal justice system because no prosecutorial office has the staff or resources to take every case to trial to try and get the maximum penalty.
There is also a lot of evident discretion that shows up when political administrations change. Some administrations vigorously enforce environmental laws and laws against business people committing fraud. Other administrations concentrate resources elsewhere, going after welfare cheats.
Often the arguments about abuse of prosecutorial discretion are really broader policy and political philosophy questions. One group wants to concentrate law enforcement resources on illegal aliens, another group would like to take down loan sharks.
I had personal experience with this issue back in 1973 as a Deputy Pima County Attorney (prosecutor). A businessman walked in having bought a bunch of toilet paper that was sold “below cost”. It was a crime in Arizona to sell goods “below cost”. The businessman wanted the store that sold the toilet paper “below cost” prosecuted. The argument was other business people could not compete with businesses that sold products “below cost” and “loss leaders” to attract customers to their stores.
The Pima County Attorney’s Office refused to do this because they had better things to do. He sued Pima County demanding that Pima enforce the law and prosecute his case. He lost.
The court ruled county attorneys had absolute discretion to decide which cases to prosecute and which not.
Anyway, what is the injury to the public if people can buy toilet paper cheap?
When all is said and done, though, when cases hit the desks of city and county prosecutors about SB 1070 matters, a triage will likely occur.
Spend time on misdeamnor cases involving illegaly being in Arizona with no victim, or work on the felony assualt cases? What would you do if you had to make that choice?
The fact remains all of the SB 1070 offenses are misdemeanors.
Entering the US illegally is also a misdemeanor.
After illegally entering the US, actually living in the country is NOT a criminal offense under federal law. It is a civil offense, with the violator subject to “removal”….i.e. deportation.
The Congressional Research Service (CRS), in an Apr. 6, 2006 report entitled “Immigration Enforcement Within the United States,” offered the following:
“The INA [Immigration and Nationality Act] includes both criminal and civil components, providing both for criminal charges (e.g., alien smuggling, which is prosecuted in the federal courts) and for civil violations (e.g., lack of legal status, which may lead to removal through a separate administrative system in the Department of Justice). Being illegally present in the U.S. has always been a civil, not criminal, violation of the INA, and subsequent deportation and associated administrative processes are civil proceedings. For instance, a lawfully admitted nonimmigrant alien may become deportable if his visitor’s visa expires or if his student status changes. Criminal violations of the INA, on the other hand, include felonies and misdemeanors and are prosecuted in federal district courts. These types of violations include the bringing in and harboring of certain undocumented aliens, the illegal entry of aliens, and the reentry of aliens previously excluded or deported.”
For some interesting articles about immigration issues