US vs Arizona

The US Justice Department, led by Atty. General Eric Holder, filed suit in a Phoenix federal court to stop the Arizona law on immigration enforcement from taking effect July 28. The Government, which only targets drug dealers and violent criminals for deportation, claims that the new state law would capture " a flood of illegal immigrants who pose no danger." (1)

The Attorney General said that "Setting immigration policy and enforcing immigration law is a federal responsibility.....A patchwork of state laws will only create more problems than it solves." The Government brief contends that "A state may not establish its own immigration policy.....immigration remains the exclusive province of the federal government."

Recall that the new Arizona law only applies when police have probable cause to believe that a person is engaging in a crime, such as drunken driving or drug smuggling. If the officer has "a reasonable suspicion" that the suspect is an illegal alien, the officer must then ascertain if the suspect really is one. Those who cannot prove they are in Arizona legally would then be charged under state law. If convicted, they could be sentenced to fines and even jail. After that, they would be turned over to federal immigration officials. But Arizona has no power to require the Government to deport any of these people; the immigration officials could simply release them all.

There are many areas of criminal law in which state and federal law overlap such as drug dealing and identity theft. Thus we already have " a patchwork of state laws" that cover the same activities as federal laws. In some of these areas the US Justice Department chooses to prosecute only large interstate activities, leaving smaller cases to the state and local authorities. By the same token, the fact that the federal government has no interest in deporting most illegal aliens should not be a bar to arresting and prosecuting them on the state level.

At the heart of this dispute is the desire of President Obama to allow illegal aliens to remain in this country while they apply for citizenship. Republican Senators John McCain (AZ) and Lindsey Graham (SC) have also endorsed bills that would permit this, but they have "flip-flopped" on the issue since it became ballot-box poison. When nearly ten percent of the American workforce is unemployed, most Americans see no benefit in allowing large numbers of illegal aliens to remain here and compete for whatever jobs become available. Thus the President's support for "amnesty" for illegals is both courageous and politically clueless.

I believe that the US District Court in Phoenix will find the case is "not ripe for decision at this time" because so far no harm has been done to anyone, and it is not certain that any harm will ever be done. The Court could either dismiss this suit without prejudice (2) or delay decision until after the law has become effective. Until the Government can present facts based upon the actual implementation of the law, the Court will have no cause to invalidate it.

If only President Obama and Atty. General Holder would read the Glazerbeam, the Government and lawyers for Arizona could be spared this pointless litigation.

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(1) McClatchy News Service, July 7, 2010.

(2) A case dismissed without prejudice can be refiled later. In this case, the Government could refile a few months after the law becomes effective if the abuses and problems predicted by opponents of the law actually occur.

Camp Clarke

Milwaukee County Sheriff David Clarke, who is seeking the Democratic nomination for another term in September, plans to establish a military-style "boot camp" program in the Correctional Facility (former House of Correction) in Franklin this year. (1) The program, to be entitled "Discipline, Order, Training and Structure " (DOTS) would include a heavy regimen of work, exercise, and classes. The classes would include anger management and Bible study. The program would take 90 days.

1. Does Clarke have the authority to establish DOTS?
Since the Sheriff was given the power to run the Correctional Facility in 2009, he can set up a training program in accordance with state law and county ordinances.

2. Can inmates be required to participate in DOTS?
Probably not, but incentives (such as earlier release) may be sufficient to attract participants. For example, a judge could sentence a miscreant to 180 days, but permit release after successful completion of the DOTS program in 90 days. The Sheriff already has the power to provide some inmates with better housing and various privileges, and these could also attract participants.

3. Can Bible study be required of DOTS participants?
No, this would be a violation of the religious rights of inmates. Chaplains are free to offer Bible (or Koran or Talmud) courses, but participation must be strictly voluntary. Unfortunately, Clarke is already known for a tendency to "push the envelope" on using the powers of his office for evangelizing; about five years ago he permitted Christian preachers to evangelize deputies at roll call. (2) This aspect of the program should be carefully monitored by outsiders to prevent any coercion of inmates.

4. Will DOTS do any good?
I think it is worth a try. Although drug treatments and training classes (in welding and printing) are offered at the Correctional Facility now, most inmates spend most of l their time sleeping, watching TV or playing games. I surmise that there are many younger inmates who are interested in changing their lives, and would appreciate an opportunity to become more physically fit and prepared for a life without crime and incarceration. Even if only a minority of the jail population ever participates in DOTS, and a minority of those benefit from the program, it would still be worthwhile. Consider it an experiment in corrections.
I suggest that the Criminal Justice Department of one our local colleges should evaluate the efficacy of the DOTS program. If the program works, it should be continued by future sheriffs. Otherwise, forget it.

David Clarke has a highly authoritarian personality, which perhaps led him to a career in law enforcement. His new program fits that profile perfectly. But discipline and structure are exactly what the men who break the laws and are sentenced to jail need, so I think the idea has a good chance for success.

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(1) Milwaukee Journal Sentinel, July 5, 2010, page 9A.

(2) See the Glazerbeam of Dec. 6, 2009 entitled "Preaching to Police".