Abstract
In Phoenix, Arizona, efforts to combine civil immigration and criminal law enforcement have wreaked havoc in the courts and overburdened the local criminal justice system. The grey area between civil and criminal law creates a situation ripe for abuse. The Constitution’s protections against arrest without probable cause, indefinite detention, trial without counsel, double jeopardy, and self-incrimination, as well as the statute of limitations, do not apply equally (or in some cases at all) in the civil immigration context. Before the notorious “show me your papers” law, SB1070, Arizona state law had already denied bail to immigrants for most crimes. Judicial officers who were neutral arbiters in the court’s criminal process have become investigators of possible immigration violations. The first state-level trafficking law in US history has been used to target the victims of trafficking, as prosecutors charged them with conspiring to smuggle themselves across the border from Mexico. The overburdened courts and jails have swelled with immigrants who are in no sense a danger to public safety.
This paper was initially published as a chapter in a Justice Strategies report, Local Democracy on ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement, by Aarti Shahani and Judith Greene. It has been substantially revised and updated.
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Notes
- 1.
Bureau of Justice Statistics data indicate that Arizona leads Western states with an incarceration rate of 572 prisoners per 100,000 people in the state’s general population.
- 2.
Arizona is notorious for its use of 287G powers by local law enforcement personnel; denial of bail for immigrants arraigned in the local courts; the use of a state-level trafficking law (the first and only in the nation) to prosecute border crossers as conspirators; and for enactment of SB 1070, the “show me your papers” law which serves as the model for “copy cat” laws introduced in numerous other states.
- 3.
Arizona’s Stephen Lemons writes extensively on Pearce’s connections to White Supremacist groups in his blog for the Phoenix New Times. See http://blogs.phoenixnewtimes.com/bastard/. For example, a blog containing video footage of Pearce and J.T. Ready at http://blogs.phoenixnewtimes.com/bastard/2008/08/russell_pearce_applauds_alread.php. Accessed on October 7, 2012.
- 4.
The Southern Poverty Law Center lists FAIR on its Hate Groups Map. See: http://www.splcenter.org/intel/map/hate.jsp#s=DC. For a historical account of FAIR, see Fernandes, Deepa. Targeted: Homeland Security and the Business of Immigration. New York: Seven Stories Press, 2007. For FAIR’s documented connections to the racist Council of Conservative Citizens, which describes Black people as “a retrograde species of humanity,” see: Center for New Community. Special Report: FAIR. Chicago: Center for New Community, 2004. Available at www.buildingdemocracy.org/reports/fair2004.pdf.
- 5.
Pub. L. no. 106-386, Division A, 114 Stat 1464 (2000).
- 6.
Among the featured speakers was Congressman Tom Tancredo, founder of the Congressional Immigration Reform Caucus. Tancredo played a vital role among policymakers in moving immigration into a national security framework following September 11, 2001.
- 7.
The lawsuit was filed in US District Court in Phoenix in November 2006 by the Center for Human Rights and Constitutional Law. Sheriff Joe termed it a stunt by the Mexican government because Mexico is among the clients of the legal group’s director, Peter Schey. See: We Are America/Somos America Coalition of Arizona v. Maricopa County Board of Supervisors, WL 2775134 (D. Ariz. 21 Sept. 2007).
- 8.
“Proof Evident, Presumption Great” is a standard established in Simpson hearings. 207 Ariz. 261, 274 ¶ 40, 83 P.3d 478, 491 (App. 2004). See Simpson v. Owens, 207 Ariz. 261, 85 P.3d 478 (App. 2004).
- 9.
For a statutory provision that identifies immigration status as a factor in assessing risk and community ties, see Release on Bailable Offenses Before Trial; definition. A.R.S. § 13-3967(11).
- 10.
The Arizona Constitution provides for merit selection and retention of judges only in counties with populations of 250,000 or greater. Currently, this includes Maricopa and Pima Counties, which contain the state’s two largest cities, Phoenix and Tucson.
- 11.
ICE describes two types of 287(g) deputies, the Task Force Officer and the Jail Enforcement Officer.
- 12.
Information compiled from governmental documents: GIITEM Appropriations History FY 2001 thru FY 2012. Joint Legislative Budget Committee. Arizona State Legislature; and GIITEM Historical Perspective. Gang Enforcement Bureau. Arizona Department of Public Safety. September 11, 2006. Both documents on file with authors.
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Greene, J.A. (2013). Local Democracy on ICE: The Arizona Laboratory. In: Brotherton, D., Stageman, D., Leyro, S. (eds) Outside Justice. Springer, New York, NY. https://doi.org/10.1007/978-1-4614-6648-2_2
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