Andy McCarthy asked why we should not view immigration enforcement from the viewpoint of the societal damage it causes, premised on prosecutorial discretion. That is in fact how most jurisdictions regard it — and they don’t prosecute. Listening to Fox News and talk radio, you might think that only cities dominated by crazed leftists (like Madison) or Latinos (like L.A.) exhibit such defiance. But it is not so. Ohio Jobs and Justice PAC keeps the most comprehensive and updated list of sanctuary cities. I urge any colleague who suffers the delusion that the removal of illegals is widespread or popular to look there.
In a lot of ways, prosecution of illegal presence resembles prosecution of illegal narcotics. Roughly 20 million Americans use proscribed drugs regularly. There are certain unwritten rules. You’re a teenager caught with a joint at prom — no, you’re not going to do hard time. Keep the stuff out of your car, or you might face a stiffer sentence — at least the second time. Do hard drugs in a town with gang turf wars, you’re going to get extra attention. Make your living off the stuff and you may find your arse in prison.
As to illegal presence: keep your nose clean, and the cops usually walk away. If they’re tracking something serious, but you’re not the target, you’d better cooperate. If its you that’s doing something the cops want off the streets, the immigration thing will come up quicker. And if you forge documents for sale, you’ll be lucky to get a bus ride home.
Now, here’s the difference. Although drugs cause more societal damage than immigration, no politician is suggesting that we do what we’d have to do to actually prohibit their use. It would be political suicide. It would involve everyone’s kid, cousin, co-worker, and school chum. You’d have to get everyone who knows drug users to snitch them out. You’d have to put the squeeze on both users and their willing accomplices.
In December of 2005, practically the entire Republican caucus voted for such an approach to immigration — H.R. 4437, which defined illegal presence as a criminal offense, and those who succored it knowingly as criminal offenders.
After the fact, even its sponsors disavowed it. “A felony penalty is neither appropriate nor workable,” wrote Jim Sensenbrenner, Peter King, and Henry Hyde to the U.S. Conference of Catholic Bishops. “We remain committed to reducing this penalty and working with you to this end.”
But I can’t understand why they disavowed their work. H.R. 4437 was the most logical attempt to date to treat illegal presence as a damaging crime, and to remove the offenders.
I guess they must have sacrificed principle to politics. The bill generated the near-universal condemnation of church groups, mass registration drives that increased Latino voting 38%, and a 30-vote per 100-cast anti-Republican shift among the Latinos who did vote in congressional elections.
Prosecutorial discretion is exactly what we have in immigration law now, Andy. If you want to supplement that with border security, you’d better come up with a law Americans are willing to enforce.