Byron, preliminarily, let me say two things. First, what I’m about to say is my own interpretation — I haven’t spoken with the Giuliani campaign about this and I do not purport to be conveying anyone else’s assessment but my own.

Second, on immigration, I am personally on record (see, e.g., here and here) as favoring enforcement by attrition (the approach Fred Thompson articulated last night) — I haven’t changed my mind. I would consider legalizing the status of some illegal aliens, but only after the government established a record of seriousness on enforcement and population was significantly reduced from the current 12 to 20 million. I think that involves a lot more than border enforcement. Finally, I’ve never thought the term amnesty was very useful in this debate. Commonly understood, amnesty is like a pardon — it’s complete forgiveness. What Mayor Giuliani and Sen. McCain are talking about is not complete forgiveness; there are penalties involved. But we shouldn’t get hung up on the semantics. The real issues are whether (a) we are creating adequate incentives for illegals to leave and would-be illegals not to come, and (b) we are being fair to would-be immigrants who play by the rules. An is-not/is-too sandbox scrape over the definition of amnesty misses those points and isn’t helpful.

All that said, while Rudy invoked his prosecutorial experience last night, it’s important to bear in mind that being an alien without lawful status in this country is against the law but it is not a crime. While many people argue that it should be a felony, or at least a misdemeanor, it is not under current law. It is a felony to be illegally in the country if one has previously been deported. But otherwise, illegal alienage is generally an administrative offense — the alien can be detained and deported but not convicted for being an illegal alien.

Fines are imposed for a wide variety of law-violations, from parking offenses to murder. But the fines, naturally, tend to be most heavy in the case of felonies (the more serious, the heavier), and significantly less heavy in misdemeanors. Under the sentencing guidelines, moreover, a lot has to do with the ability of the defendant to pay. (No matter how serious the offense, it is pointless to impose a fine that a defendant cannot afford to pay, since the law does not permit imprisoning someone for failure to satisfy a fine he can show he is without resources to pay.) I could easily see a judge imposing a $5000 fine for, say, a minor fraud (which could be a felony) or personal-use drug possession (often a misdemeanor); I could also easily see a judge imposing a fine of $5000 for a very serious felony if the fine was in addition to a stiff jail sentence and the defendant could not afford to pay much more than 5K.

This goes to why I don’t think the is it amnesty? debate is helpful. The federal bank-robbery law permits imprisonment of 0-20 years and a fine of (if my memory is right) up to $250,000. If a judge sentenced a guy who attempted a bank robbery merely to a $5000 fine, that would be a legal sentence and it would not be amnesty. But who would care? It would be an outrage that would encourage more bank-robbery. The problem with the component we too casually refer to as amnesty in comprehensive immigration reform proposals is that the proposed penalties are insufficient to address the problem, not that they aren’t in fact penalties.

ADDENDUM: I also don’t think it’s very helpful when I use the term amnesty, as I did last night. I was referring more to what I took to be Sen. McCain’s hypocrisy in lashing out nastily at Romney when he’s done plenty of his own “evolving,” but, heat of a live-blogging moment or not, I think I could and should have done better.