Court Upholds Arizona County’s Use of Unique New Statute to Prosecute Illegal Immigrants
by Rachel Alexander | View comments |
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The top two criminal law enforcement officials in Arizona, Maricopa County Attorney Andrew Thomas and Sheriff Joe Arpaio, have teamed up to arrest and prosecute illegal immigrants crossing the border into Arizona using a new state human smuggling law, and the courts have agreed. "I would view the scoreboard as Arizona taxpayers - 1, Mexican Government - nothing," County Attorney Thomas declared.
The federal government may not be doing much when it comes to illegal immigration, but Arizona’s Maricopa County Attorney and Sheriff are. The top two criminal law enforcement officials in Arizona have teamed up to arrest and prosecute illegal immigrants crossing the border into Arizona using a new state human smuggling law, and the courts agree. Arizona is the first state in the nation to pass a law against human smuggling.
Following the legal advice of Maricopa County’s tough on crime prosecutor Andrew Thomas, Maricopa County Sheriff Joe Arpaio began arresting illegal immigrants under the new law and referring them for prosecution. Since the enforcement began, 272 illegal immigrants have been arrested and charged. Twenty-three illegal immigrants and one coyote have pled guilty, and will serve jail-time before being deported. With a felony on their record, they will have a slim chance at ever entering the U.S. legally or obtaining U.S. citizenship.
Under Arizona’s statutes, the crime of conspiracy automatically applies to felonies unless specifically exempted by statute. After thorough legally researching the issue, Maricopa County Attorney Andrew Thomas provided a legal opinion to Sheriff Arpaio confirming that illegal immigrants caught using the services of a coyote to sneak across the border could be arrested along with the coyotes for conspiracy to commit human smuggling.
The Mexican government tried to interfere with the prosecution. The Consul General of Mexico, Carlos Flores-Vizcarra, asked California lawyer Peter Schey to file legal motions on behalf of the criminal defendants. Schey’s motions to dismiss the charges argued that conspiracy didn’t apply to the human smuggling statute, and that the human smuggling statute should be struck down as unconstitutional, claiming it was an impermissible infringement on federal jurisdiction. Maricopa County Attorney Andrew Thomas said this was troubling, because it went beyond mere defense of a Mexican citizen in American courts, attempting to strike down Arizona’s laws. Thomas wrote a letter to Secretary of State Condoleeza Rice requesting that the U.S. Government lodge a formal complaint with the Mexican government.
Judge Thomas O’Toole of Maricopa County Superior Court issued an opinion on June 9, 2006, dismissing defense arguments that federal law preempted the state law, and noting that the states are only preempted from making law where specifically prohibited in federal law. O’Toole cited the U.S. Supreme Court decision De Canas v. Bica (1976), which held that California law penalizing employers for hiring illegal immigrants was not preempted by the exclusive federal law to regulate immigration. The Supreme Court opinion stated, “[This court] has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se preempted by this constitutional power, whether latent or exercised.”
The federal government has not made any law or regulation preempting the states from passing laws regulating human smuggling. Although preemption is an excuse frequently referred to by politicians, it is a red herring used to avoid debate on the merits of enforcing laws against illegal immigration.
Judge O’Toole was equally dismissive of arguments that conspiracy doesn’t apply to the crime of human smuggling. The defense argued that the legislature didn’t intend to apply conspiracy law to the new statute. O’Toole said this wasn’t true, and that the legislative history and plain language of the statute clearly supported application of the conspiracy law.
Sheriff Arpaio cheered the ruling, saying, “I just don’t believe in turning them over to I.C.E. for a free air-conditioned ride back to Mexico. They’re getting a free ride to the county jail to be prosecuted by the County Attorney.” He also criticized municipal law enforcement who refuse to enforce the conspiracy law against illegal immigrants because of the additional cost, noting that counties pay for felony arrests, not cities.
After the court’s opinion was released, Maricopa County Attorney Andrew Thomas commented, “I guess I would view the scoreboard as Arizona taxpayers – 1, Mexican Government - nothing. It is an important and historic day in fighting against illegal immigration.” Sheriff Arpaio added, “Let them appeal, we’re still going to lock them up.”
Defense attorneys and the organization Center for Human Rights and Constitutional Law intend to appeal the decision, claiming that it will cost taxpayers additional money to defend the county from lawsuits. Maricopa County Attorney Andrew Thomas responded that protecting public safety is not a decision that should be determined based on whether it costs money, and is prepared to defend the law all the way to the U.S. Supreme Court.
Rachel Alexander is a Deputy County Attorney with the Maricopa County Attorney's Office
rachel@intellectualconservative.com
http://www.intellectualconservative.com/rachel-alexander-archives/
Read more articles by Rachel Alexander
The CO Supreme Court just threw out a citizens initiative intended to deny illegals non-mandated state services. In a moment of clarity for our governor, he decided to call our Democrat-controlled legislature back into a "special session" if the CO Supreme Court decides not to overrule itself. As a result, open-border Dems are complaining that the special session will cost $15K per day, and is therefore a waste of taxpayer money.
It is a mere pittance compared to the nearly $1B per year illegals cost Colorado.
Comment by The Plumber | June 14, 2006
It seems to me we could have found the next senator of Arizona. A pro-active, real results based candidate would not be defeated in any of these border states. Wouldn't it be wonderful to see McCain hit the high road?
Comment by honker | June 15, 2006
How is it that liberals are happy to spend money all sorts of programs and services that do not benefit the general populace in many instances, yet when we actually begin to enforce our laws liberals are worried that would cost us money? Somehow I doubt that the Center for Human Rights and Constitutional Law is worried about the state of Arizona's finances and making sure that they 'protect' our state from lawsuits.
Comment by Rob | June 15, 2006
There's a Proverb which reads, "Do no bind the strong man". Until Andy Thomas came along and took charge of the illegal immigrant situation, our government seems to have been bound, impotent to stop the thousands, even millions of illegals streaming across our borders. It's been sad to watch the USA, supposedly the most powerful nation on earth, seemingly unable or unwilling to deal with our pourous border problem. (And we do have a problem because many of those coming across are not just looking for a job; rather they are joining the criminal element already operating in cities such as Phoenix) Permissiveness, ignoring the obvious, has never worked to solve anything and it's been hard to understand why a once proud nation has lost its resolve and keeps trying to ignore the elephant in the living room.
Comment by Steve Edward | June 15, 2006
To Rob:
Re: Liberals and spending money
“Anyone who is aware of the high degree of selectivity of liberal indignation, and of how they remain utterly impassive in the face of any injustice that doesn’t serve to further their agenda, keeps their complaints in perspective.”
Comment by G of Sedona | June 16, 2006
Thank you for such interesting comments. They help us outside of the United States to understand where the US is coming from on a number of issues and (more worrying) where it might be headed.
Comment by Observer | June 16, 2006
It's not that the US is unable to enforce our immigration laws but are politically unwilling. I myself am ashamed to call myself a registered Republican. I cannot vote for a Democrat so I guess I am one of those to maybe stay home. I have refused to sent $ to the national committies but will give to selected candidates. Most of my friends are doing the same.
When McCain gets trounced in the primaries then maybe our so called (Representatives) will wake up and realize that they are supposed to represent us and not the Mexican Government.
Comment by gene | June 17, 2006
I'm not sure how this turned into a partisan discussion. Yes, Democrats seem to be for just letting all the illegals in, but I don't see the Republicans as a party voting against the "amnesty" program either.
I'm pretty disgusted with both parties and especially the president regarding this issue. All I can say is "Three cheers for Arizona!" May the other border states wake up and realize that the federal government has failed us on this issue and they'll have to address it themselves(for now, at least).
And I'm still amazed that there is an "issue" about whether to enforce our immigration laws. It's like deciding whether or not to breathe.
Comment by Ron S. | June 19, 2006
This is probably the first effective attempt by local law enforcement that I have seen work on illegals. I would also like to see these same illegals put to work during thier incarceration, to pay for the cost of thier upkeep and transportation back across the border. Or face spend thier time in solitary confinement, on the most bland, inexpensive, and unnapealing diet imaginable……..
As far as the liberals? They will use any excuse neccesary, that seems plausible, to try and hamstring anything that threatens thier agendas. If people dislike this-get out and vote-and replace them with people who will DO your will-rather than whine about it never happeneing.
Kudos to Thomas and Apaio for taking action that works.
Comment by Terry | June 20, 2006
Until Americans wake up to the fact that the President's plans are underway for the SPP, they are going to keep wondering why no "real " effort is being made to stop the 'INVASION'. When all the dots are connected , then, and only then, you will see an all out outcry from US citizens. Go to SPP.GOV
Comment by Linda | June 26, 2006
This seems to me a mere political stunt in order to gain media attention in the limelight of the immigration debate. Arizona is not reinventing the wheel with this policy, but rather, is taking an established federal law and employing it at the state level.
The argument can be made that the national government or Arizona’s United States Attorney’s Office is not doing enough. On the other hand, maybe the Arizona USAO has been doing their best while downing in immigration cases. For example, the New Mexico USAO will only prosecute immigration cases on the individual’s tenth offense because their extraordinary number of immigration-related cases. Most likely, the Arizona’s USAO has the same problem.
States should deal with the immigration problems on the federal level. If a USAO is unable to prosecute the hoards of immigrations cases, then a larger allocation should be provided to the federal judiciary or additional magistrate courts to alleviate the immigration caseloads. Senator Domenici of New Mexico has proposed such an amendment to the immigration bill in Congress; however, it is doubtful that be added to the bill. Immigration is first and foremost a federal-level problem, which affects the states. Therefore, states should not be encourage or even responsible for the federal court’s responsibility.
Comment by MBF | July 5, 2006
Go, Sheriff Joe! I've been a fan of Sheriff Joe's since I learned of his policies. I live west of Tucson in a very high illegal traffic area. All my neighbors and I are affected quite often by the sheer numbers of people traipsing through. They walk into our yards and want water, they sneak down our roads (rural area), and they steal our cars that are parked next to our houses.
I think we should go four steps further. Make it completely subjective. Let's clear a mile swath against the border and mine it. Put all kinds of warning signs on the Mexican side in Spanish. The liberals would be delighted that we're spending so much less money on Border Patrol agents (though they may accuse us of murder). However, there are warnings on boxes of poison as well. The manufacturer of the poison shouldn't be accused of murder - clearly the person who ate it was suicidal. At least we should debate the possibility as though we're truly serious about closing the borders.
Comment by Tucson Resident | July 14, 2006
“Immigration is first and foremost a federal-level problem, which affects the states. Therefore, states should not be encourage or even responsible for the federal court’s responsibility.”
Dear MBF,
Here I must strongly disagree with you. Ours is a federated union of sovereign states who have come together to create a single nation. The federal government is loaned certain powers by the independent and sovereign states. If the federal government can not or, as in the case of immigration, will not act to solve the problem then the states are perfectly justified in withdrawing that loan of power and acting on their own. I do not advocate the states randomly or merely for political reasons withdrawing their grant of authority but only when and if the federal government is unable or unwilling to act.
The fact that you note that “Senator Domenici[‘s] … amendment…is doubtful that be added to the [immigration] bill” only strengthens the idea that local governments must act to protect the interests of the citizens in their jurisdiction. If your house is burning you don’t sit in the living room and wait for the fire department to save you. You get out and then try to fight the fire with what ever tools you have until they arrive.
Comment by DF Lickiss | July 23, 2006
the most ironic issue with the issue of sheriff arpaio and his grandstanding is why now.this issue has been going on in the region for some time now.i really find it hard to believe that we as anation are selling out what our country stands for.all to often all the hoopla is a decisive smoke screen created to divert what actually is really going on.we concentrate so much time and energy on terrorists from other nations we seem to ignore the ones from within our own borders.somehow joe has created almost what hitler tried.he has some good policies but the illegal ones that he ingages in are worse.his jails have operated on and against court orders thereby exhibiting the same behaviors as people here illegally with one great exception,most of the migrants that come here ,come for a belief in the american dream,joe is an official sworn to uphold the laws of maricopa,county and to protect the covenants of constitutional rights.we seem able to accept and desire prosecution for illegal immigration, if joe wants to live by the letter of the law fine,then to he needs to be prosecuted for his crimes against the united states.but yet the people of arizona dont really get it . we all i hope want a nation of more peace and harmony.but never does any society accomplish that by stomping on the impoverist.we have united states citizens being denied the basic rights guaranteed by the united states constitution. and worse yet not much is being done to correct the problems.hopefully we can somehow come together and even if we all never agree on certain things we will standfast and agree on the inalienable rights for what so many of our ancestors died and worked for.and maybe somehow someway this world becomes color blind and simple ; either your a good person or your a bad one;its time to choose.the events of 9/11 changed our inn0cence,and we can honor all from the halls of montezuma to the shores of tripoly with honor ,loyalty,and discipline-may the good join hands in the tradition of our band of brothers and sisters all across the land,the air ,the sea,and the heavens. thank you and god bless.
Comment by tony petersen | July 29, 2006
The "why now" can be explained as reaction to the inaction on the part of our executive branch. This administration continues to ignore the realities of its sworn oath to uphold the laws of the United States of America. Criminals, as defined by law, should be prosecuted and punished for their crimes. Personally, I'd rather see employers punished first, but if we are not a nation of laws, then it will all descend into anarchy at some state.
Stop praying to God to solve this problem and start prosecuting and punishing criminals.
Comment by Todd South | August 22, 2006
Everyone needs to realize what is really driving illegal immigration, or rather the decision of the federal government to allow it and not enforce our immigration laws. The Council On Foreign Relations which has tremendous influence over various government officials, wants "open borders" in 3 years as part of what they refer to as "North American Integration." This is a plan to integrate the US, Mexico, and Canada, econimically, and politically. It began with NAFTA and "open borders" is just another progression of their plan. If you doubt me, then read it on their own website:
http://www.cfr.org/publication/8102/
Comment by George Parigian Jr. | September 28, 2006