Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

Who we are

I go to Phoenix every spring for five or six days.  I started doing that a few years back, when I spent an entire winter in Cleveland and resolved that if I had to crawl over broken glass to go to someplace warm, I was never going to do that again.  Phoenix is a nice place that time of year:  you get up in the morning and go out in shirtsleeves to 70-some degrees, a sky that couldn't be bluer,you take in a spring training ballgame, you find a good place to eat.

It's never occurred to me to take any proof of my citizenship along with me.  But if my name were Jose Hernandez, I'd be giving it some thought right now.

Last Friday Arizona Gov. Jan Brewer signed a law (text here) substantially expanding the role of local police in enforcing immigration laws.  That's probably putting it lightly:  the law makes being an illegal immigrant a state crime, and requires police to check a person's immigration status if the officers suspect they are in the US illegally. 

The bill's received harsh criticism from the left side of the political spectrum, and understandably so.  While the bill requires "reasonable suspicion" for stopping a person and inquiring about their immigration status, that standard is something substantially less than a precise formula; it lies in that netherland south of "probable cause" and just north of "inchoate hunch."  Given the vagaries of the standard and the practicalities of the illegal immigration situation, race is invariably going to enter the calculus of whether the "totality of the circumstances" warrant a stop.

And, for a couple of reasons, the normal factor inhibiting police excess -- the exclusionary rule -- won't be present.  First, the rule is effective only when police view a successful prosecution as their primary goal; it works on the principle that the police won't conduct a bad search if they know that the evidence is going to get thrown out.  But the rule has no impact if the police don't regard a successful prosecution as their goal.  A large part of the reason for the reduction of crime in New York City in the 1990's was the decision to get guns off the street, and the method employed to do was very aggressive use of stops and frisks.  Many such searches got thrown out, and in the vast majority of cases, nothing was even discovered:  stats showed that only one out of sixteen stops resulted in a felony arrest.  But nobody thinking of carrying a gun is going to weigh the possibilities of having the evidence suppressed; he's simply not going to carry a gun to avoid any problems.  That's exactly what happened.

That's what's likely to happen in Arizona, too.  The proponents of the law have spoken openly of it representing a strategy of "attrition by enforcement":  the goal is not to arrest all illegal aliens, but to encourage them to leave the state by increasing the possiblity that they will be arrested.  As in New York City, the goal here isn't valid arrests leading to successful prosecutions, the goal here is to send a message.

What's more, it's quite likely that the invalidity of an arrest isn't going to affect the successfulness of the resulting prosecution anyway.  The exclusionary rule works to suppress any evidence seized as a result of an illegal arrest; if the cops stop you for no reason, pat you down, and find a bag of crack, the crack gets suppressed, and the government no longer has a case.  But while an illegal arrest requires suppression of any evidence seized as a result, it doesn't otherwise affect the underlying prosecution; you're entitled to have the evidence seized in your arrest suppressed, but the arrest itself isn't suppressed.  Back in 1992, the Supreme Court upheld a conviction where the defendant had been kidnapped from another country in violation of its extradition treaty with the United States.  Here, Arizona has defined being in the state illegally as "trespassing."  The police won't be "seizing" any evidence of that from you at the time of your arrest.

On the other hand, it's not hard to understand the sentiment that led to the bill's passage.  Proponents have a point that their action stemmed from the inaction by the Federal government, which has dithered over immigration reform proposals over the past several years, without doing anything concrete about it.  Illegal immigration costs Arizonan taxpayers over a billion dollars a year.  Even worse, the face of illegal immigration is no longer a bunch of guys in a truck headed off to harvest crops or do landscaping; the war between the Mexican government and the drug cartels has spilled over the border.  The bill's passage was ensured, but the tipping point for the Governor's decision to sign it may have been the murder of a local rancher, presumably by a drug smuggler.

And there were at least cosmetic attempts to bring the law in line with constitutional niceties.  Glenn Beck, the biggest idiot in television political commentary today, along with all the others, took to his show to read the provisions of the bill which prohibit the police from relying on race, color, or nationality in making their determinations of reasonable suspicion.  Good luck with that, for the reasons I mentioned.

There's an inevitable tension between order and liberty, and if I were living in Phoenix, instead of visiting there for a week once a year, I might feel differently about where to draw that line.  But make no mistake:  this week an American state passed a law which essentially legitimized racial profiling.  Good or bad, everybody should at least admit to that much.

Search

Recent Entries

  • April 26, 2017
    MIA
    Like Mark Twain, rumors of my demise have been greatly exaggerated. Except I am pretty sure he's actually dead, while I am not, and for that matter, nobody's spreading rumors that I am. Great lead, huh? The nice thing about...
  • April 20, 2017
    The Supreme Court takes a look at the trial tax
    And you thought this was the week you only had to worry about income taxes
  • April 18, 2017
    What's Up in the 8th
    Remembering Warren Zevon, and the Fourth Amendment lives
  • April 17, 2017
    Case Update
    Structural error, prejudice, and police run amok.
  • April 13, 2017
    Some arguments on sentencing
    Why oral arguments can be fun, even when they're not yours
  • April 12, 2017
    What's Up in the 8th
    Oh fun: declarations against interest v. non-hearsay. Also, the difference between not guilty and innocent, and Ohio's statute penalizing the refusal to take chemical test in a DUI case goes bye-bye
  • April 11, 2017
    Case Update
    Filibusters, and appellate cases on all the ways lawyers can screw up.
  • April 7, 2017
    Change of course
    A new approach in my client-attorney relationships
  • April 4, 2017
    What's Up in the 8th
    A true rocket docket, and Anthony Sowell pops up again
  • April 3, 2017
    Case Update
    Free merchant speech, an argument on Brady, another look at Creech