Heavy-handed immigration policies hurt us all
In the debate over DACA and The DREAM Act, there is one argument that comes up repeatedly in various forms — “But they broke the law! What about the importance of enforcing the law?” It is, in fact, a deep and abiding respect for the rule of law that makes comprehensive immigration reform (including the passage of The DREAM Act) so critical.
Firmly established in our criminal justice system is the concept of prosecutorial discretion, which is simply the idea that those tasked with enforcing the law and prosecuting the offenders are able to be selective in choosing which cases are most worth pursuing. Prosecutorial discretion is what allows a police officer to give a warning instead of a speeding ticket or a prosecutor to offer a plea deal with a reduced sentence based on mitigating factors. It is an ordinary and necessary function of the law that is designed to promote efficiency and ultimately protect us all from those rare occasions where strict enforcement would result in an unjust outcome. For example, a prosecutor should exercise prosecutorial discretion to choose not to spend valuable time and resources prosecuting a person who kills a home invader in what is a clear, undisputed case of self-defense.
Recognizing that it was impractical and costly to cast as wide a net as possible, the Department of Homeland Security (DHS) under the Obama administration implemented a policy that used prosecutorial discretion to prioritize deportation of criminals, repeat immigration offenders, and those currently attempting to enter our borders without documentation. The many otherwise law-abiding immigrants with strong community ties and a long presence in the US were officially designated as “low enforcement priorities” and Immigration and Customs Enforcement (ICE) was directed to use its limited resources to focus in on deporting those immigrants who would do us harm. Deferred Action for Childhood Arrivals (DACA) was implemented on a categorical basis based on similar enforcement priorities. These weren’t perfect solutions, and even had some unfortunate unintended consequences, but they at least attempted to promote widely accepted social values.
Even before terminating DACA, Trump reversed Obama’s Priority Enforcement Program, implementing instead a “no exemptions” policy. Now, DHS and ICE have been ordered to change their focus to a system in which they are required to deport anyone who is deportable.
There may be something about a no exemptions policy that sounds fair, but in practice it’s neither wise nor workable nor ultimately fair at all. In fact, it’s as unethical as if the government were to decide that the most important priority for police and prosecutors were the number of convictions, regardless of the nature of the crime. It would result in law enforcement spending limited time and resources going after everyone who went slightly over the speed limit, while shrugging off drunk drivers, because doing so would be statistically advantageous and much easier. Such a policy would not be right, and it wouldn’t make us safer. The same can be said of Trump’s new enforcement policies.
Of course, prosecutorial discretion can also be abused. Even a superficial examination of sentencing disparities and acceptance of plea bargains by innocent people reveals as much. And unfortunately, the current administration has already begun to roll back protections against such abuses on issues like civil asset forfeiture, mandatory minimum sentencing guidelines, and over-criminalization. As the current administration hires 10,000 new ICE agents, pushes for funding a huge border wall that makes it more difficult for everyone to come and go, keeps a public database of crimes committed by immigrants, demands immigrants — even naturalized ones — hand over all social media handles and aliases from the past 5 years, disregards age-old agreements about safe spaces like churches, schools, and hospitals, and generally creeps ever closer to looking like a police state, we should all consider whether these efforts further the cause of liberty. If they don’t, we should welcome legislation to correct that.
Before we argue that it’s simple, — people who break the law should suffer the consequences — we should carefully consider whether it’s really a good idea to limit prosecutorial discretion and encourage expansive and exacting enforcement. What purpose would that serve, aside from just sounding “tough on crime”? Before we refer to someone as “illegal,” we would do well to carefully consider the fact that even in cases of criminal trespass, there are exceptions for people who are fleeing imminent danger. If it is legally defensible for someone fleeing immediate and serious injury to rush into a stranger’s front door seeking assistance, shouldn’t someone escaping similarly imminent threats be permitted to seek refuge in another country? Would anyone really want it to be otherwise? What societal values would that promote? Do we want to live in a place where property rights are valued more than human life?
And certainly, before we consider calling ICE to report suspected undocumented people in our communities, we should take a moment to remember Jesus’ proclamation in the Sermon on the Mount: “Blessed are the merciful, for they shall obtain mercy.” Dr. Martin Luther King, Jr. reminded us of similar earthly implications from a cell in the Birmingham jail where he wrote, “Injustice anywhere is a threat to justice everywhere.”
Those who encourage a heavy-handed government in one realm are bound to feel its effects in another realm sooner rather than later. We must be sure not to let our fear of anarchy startle us into the snare of tyranny.
