It Appears We’re In the Desert: A Conversation about Arizona, Immigration Law, and Race: Part 1

{NB: None of the following is intended as, nor should it be construed as, legal advice to any person, persons, or group. If you or someone you know requires legal assistance, contact an attorney in your area. The statements made below represent only the personal opinions of this essay’s author}.

Yesterday I was listening to Sean Hannity’s nationally-syndicated radio program. He was savaging Attorney General Eric Holden for having apparently conceded, under Congressional questioning, that he had not yet read the new Arizona statute making it a state-level crime to be in the United States illegally. This, despite the fact that Holder had on more than one occasion registered concern over the law’s potential for promoting racial profiling—which, Hannity pointed out repeatedly to his listeners, the language of the statute explicitly forbade. While I was listening to the show no one called in, or was allowed on the air, to point out to Hannity that racial profiling can no more be “forbidden” than it can be codified. Any statute codifying racial profiling would be nullified by any court in the United States, state or federal, before it could be enacted; likewise, any statute claiming to outlaw racial profiling would be just as toothless and irrelevant, whether or not it passed judicial muster as a mere reiteration of the Fourteenth Amendment.

For years conservatives of Hannity’s ilk have been hard at work turning the cottage industry of spreading misinformation about the criminal justice system into a veritable empire of criminal justice-related misinformation. Dick Wolf’s endlessly syndicated and replicated Law & Order series has done more to intentionally misinform the American public about its system of laws than any determined propaganda campaign of the twentieth century, and I include in this all of the most infamous propaganda campaigns of that bloody century. Those who watch Wolf’s politically-charged tripe regularly are not merely uninformed about the operations of police and prosecutors in the United States, they are in fact less knowledgeable about our national system of criminal justice than those with absolutely no awareness of it whatsoever—for instance, a child of seven living in a lightly-policed suburban enclave somewhere in middle America. Every episode begins with a studied, deliberate lie: police officers, while often courageous, often honorable, and undoubtedly critical players in American society, in no way whatsoever represent “the people,” as we are so sagely informed by voice-over actor Steven Zirnkilton at the beginning of every hour-long Law & Order. Nor do the “district attorneys, who prosecute the offenders,” represent the “people” (the full text of Wolf’s seminal deceit: “In the criminal justice system, the people are represented by two separate yet equally important groups: the police, who investigate crime, and the district attorneys, who prosecute the offenders. These are their stories”). As anyone who’s stepped into a courtroom is well aware, both police officers and prosecutors represent the awesome power of our state and federal governments. They are not beholden to the citizenry of their district, or their state, or their country. Their employers and, yes, masters are government officials, some of whom are elected, some of whom are appointed, some of whom are merely bureaucrats. Were the entire population—every man, woman, and child—of some American hamlet to object to the government-authorized investigation and prosecution of a given offense, the police officers and district attorneys of that hamlet would not only be under no obligation to acknowledge such objections but indeed under every imaginable obligation to ignore them entirely. In the criminal justice system, the only representative the “people” have is the jury, a body composed of twelve ordinary citizens from the legally-defined subdivision in which the offense allegedly occurred. And if there’s one maxim in the criminal justice system, it’s that police and prosecutors would far prefer to try a case before a judge—another government official—than any sampling of the “people.” More than nine times out of ten. Draw your own conclusions. (That conservatives have dressed up “tort reform,” which is definitionally a hatred of citizen-comprised juries, as, instead, a hatred of effete attorneys is just another indication of the spite so many Republicans have for their fellow Americans.)

The point is that it’s no surprise whatsoever that in America we no longer have a common language with which to speak about our criminal justice system and any national controversies arising from it. Much of the country believes, per Wolf, that prosecutors regularly meet face-to-face with defendants during plea negotiations (over my dead body, says this former public defender); that prosecutors and defense attorneys are mortal enemies disgusted by one another in every possible sense, rather than, as is so often the case, friends and mutual admirers both socially and professionally; that cross-examination proceeds through a series of open-ended questions (in fact, a proficient cross-examination contains almost no questions whatsoever, only statements made by the questioning attorney, to which the only possible reaction is “yes” or “no”); that the Constitution and a liberal judicial branch present a near-insurmountable hurdle to the proper investigation and prosecution of crimes (in fact less than 10% of criminal cases ever go to trial, and less than 5% of those cases are decided by a pre-trial motion to exclude evidence under one of the Amendments to the U.S. Constitution). I’d say that Dick Wolf and his Law & Order series produce (in all senses of the word) several identifiable lies per every five minutes of airtime, so these are just a few exemplars of the larger, now-twenty-year-old propagandistic setpiece. More immediately pertinent to the debate over the statute recently enacted in Arizona is the fact that most Americans don’t realize it’s not a crime to be an illegal alien in America. You could be excused for thinking this, though, if you’d heard Arizona Governor Jan Brewer declare otherwise; if you’d heard the authors of the Arizona statute declare otherwise; or if you’d heard even center-left “news” organizations like MSNBC declare otherwise (choose your article: most recently, May 14th’s “Jews: Stop Arizona-Nazi Comparison,” whose headline, needless to say, poses more than one problem). Or perhaps you heard Hannity or Limbaugh say it, and in the flood of outright, unabashed lies—all broadcast over the public’s airwaves—you were unable to distinguish one fish-story from another.

The truth is that being an illegal alien in the United States is a civil infraction, and leads to incarceration only because the federal government has, among its many powers, the power to detain and deport men, women, and children when the nation’s federal immigration statutes are at issue (detention of illegal immigrants became mandatory under a Democratic President—Bill Clinton). But in terms of legal status, an illegal alien is no more a “criminal” under federal law than someone who drives a few miles over the speed limit. Perhaps this is why Boston radio shock-jock and former MSNBC contributor Jay Severin was endlessly jeered as racist when he tutored his listening audience to call illegal immigrants “criminaliens.” It’s easy to presume racial animus when one deigns to call millions of people “criminals,” before a listening audience of hundreds of thousands or even several million, without once checking your facts. Which is why I found Sean Hannity’s smackdown of Eric Holder more than a little bemusing. Not only does the Republican platform Hannity shills for exhibit no understanding whatsoever of the criminal justice system (the GOP plan for preventing recidivism would, paradoxically, only make sense only if we presumed recidivism desirable), in fact Republican criminal justice policies have for decades now fetishized the promotion of crime: yes, that’s right, if you’ve worked in the criminal justice system for long you’ve seen how Republican criminal justice policies make us all less safe, and markedly so.

Racial profiling is an excellent example. Not only does it not work, not only does it waste precious human resources—one reason law enforcement is generally against it—it also telegraphs to terrorists, drug-runners, and other assorted baddies that we’re going to go about detecting them in the most ineffectual and transparently predictable way possible. Racial profiling is like a handbook for terrorists and kingpins: if you don’t want to be found out, avoid using anyone who fits the “profile” in your operation. It’s remarkable that the same conservative radicals who wanted every hearing about national security to be classified (at least when Mr. Bush was President) in order to avoid tipping off the enemy as to our “methods” are now suggesting, with enthusiasm, that Americans make international and domestic law enforcement a game of chicken we’re absolutely guaranteed to lose. Again, this is where the allegations of racism come into play: if the policy you’re proposing will have precisely the opposite effect of the one you claim it will, and history has shown this repeatedly, observers will start looking for other motives besides efficacy. I’m looking at you, Bush torture policy. And so are the Founders, as the system of “reasonable, articulable suspicion” promulgated by our Fourth Amendment does, if executed responsibly, offer the absolute best method for detecting and preventing international and domestic crime ever devised. It requires that law enforcement officials be able to synthesize data, rather than merely distinguish between colors—something newborns can do after one week.

Understanding Arizona’s new criminal statute prohibiting the presence of illegal immigrants in the state—which is so haphazardly written it will likely be struck down by the first federal court to review it—requires not only an understanding of what racial profiling is (which would reveal it to be something no state legislature can effectively prohibit) but also how crimes are investigated in the United States. And if you’re been watching radical-conservative Dick Wolf’s masturbatory fantasies for any period of time, you’re not only ill-equipped for either task but indeed well behind the starting line. And the starting line is this: In policing, as our Founders well knew, the ballgame isn’t so much the arrest itself but the contact. If the government is permitted to make contact with you, it can and does have countless ways of ensuring you end up in the back of a cruiser. Indeed our system is designed this way, and not merely because even an illegal arrest can land you in jail for months—between twenty-four hours to a weekend before a judge reviews your bail commissioner-set bail (if the state uses bail commissioners; otherwise, you sit in a cell and wait for the judge), and then, if you can’t make bail, many weeks, up to months, until your first (movable) trial date. A sheriff’s deputy once told me that he didn’t really care if a DWI/OUI arrest led to a conviction, as even being arrested for drunken driving can lead to so many administrative and criminal justice consequences that in fact it’s the police, as much as any judge, who have the power to determine penalties in the first instance. So it’s important to know, then, that in the United States the government can initiate contact with you if one of its duly-designated officers has “reasonable suspicion” you have committed, are committing, or are about to commit a criminal offense (for a civil infraction, the standard rises to “probable cause”). Reasonable suspicion means whatever the officer thinks it means; later on, when the officer must show “reasonable, articulable suspicion” in court, it still means largely what the officer thinks it means, as for a judge to find that an officer initiated contact with a citizen without any legitimate basis is to insult both the officer’s professional skills and, often, his personal integrity—both of which are more or less out of bounds when that same judge will need to trust that same officer’s professional skills and personal integrity in countless bench trials over the next days, weeks, and months. The problem isn’t so much, as Harvard Law School professor Alan Dershowitz once said, “testilying”—intentional perjury by government officials—though that happens on occasion also. No, the real problem is that it’s police officers, not state legislatures or even judges, who run this country’s legal system on a day-to-day basis. The judge who fails to defer, more than ninety-five times out of a hundred, to the sense impressions of police officers will not be allowed to remain a judge for very long. A regularized, systematic circumspection of police testimony as to “reasonable suspicion” would bring this nation’s criminal justice system to its knees within seventy-two hours.

In enacting a new criminal statute, the Arizona state legislature has granted police officers a new and wholly unnecessary weapon in their arsenal of “reasonable suspicion.” Officers already had the implicit power to racially profile; it merely required of them a cover story which a judicial branch already institutionally beholden to them would be willing to believe. In practice, a workable cover story is just about anything: one famous U.S. Supreme Court case, United States v. Arvizu, found that a government official could initiate contact with a vehicle if that contact happened near the U.S. border, if the car was a minivan, if the car slowed when it became aware of the police (as you do), if the driver exhibited a “rigid” posture and did not look at the police officer while passing by (as you do), if the car was registered to a U.S. town with an illegal immigrant population, and if the children in the back of the minivan waved to the officer. The upshot? The officer in Arvizu had a “hunch,” and that hunch turned out to be right, and thus bad law was created. Now, as before, all across the nation officers’ hunches are treated as the law of the land, not because they’re always right, but because if a case actually makes it to court it probably was. We don’t hear of the millions of false positives every year because those cases don’t make it into the criminal justice system. (In the same sense, we don’t hear much about county jails and nickel-and-dime misdemeanors on cable television, though in fact this is what our criminal justice system is largely comprised of—not state prison bids and violent felons, but friends and neighbors with minimal or no prior records who are accused of non-violent offenses and will be released back into our communities either immediately after trial or within a matter of days or weeks.)

. . . next installment this Friday . . .



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