Source: American Immigration Council
What You Need to Know About the New Law and How It Can Impact Your State
Barely two months after passage of Arizona’s tough new immigration law (SB 1070), both opponents and proponents are attempting to assess the impact the new law may have on residents of Arizona—citizens and immigrants alike. At the same time, over 20 states are considering similar legislation. Multiple lawsuits have been filed challenging the constitutionality of the law, opponents are mounting a boycott, and numerous polls show that a majority of the public both supports the Arizona law and comprehensive immigration reform.
SB 1070 represents, among other things, a growing frustration with our broken immigration system. Ultimately the courts will decide the constitutionality of the law, while time will answer many questions about its impact. In the short term, as other states contemplate copying Arizona’s version of immigration reform, there is plenty of evidence to suggest that an enforcement-only strategy—whether attempted at the federal or state level—does not solve the immigration problem.
This guide provides key answers to basic questions about Arizona’s law—from the substance of the law and myths surrounding it to the legal and fiscal implications. As other states contemplate similar legislation, knowing the answers to basic questions about Arizona’s law will prove to be critically important in furthering the discussion.
WHAT IS SB 1070?
SB 1070, also known as the Support Our Law Enforcement and Safe Neighborhoods Act, was signed into law by Arizona governor Jan Brewer on April 23, 2010 and is scheduled to go into effect on July 28, 2010.
Q: What is the purpose of the bill?
A: As enacted, the legislation declares that “the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona.” In other words, the provisions of the bill are designed to eliminate illegal immigration in the state through the use of state and local law enforcement actions. “Attrition through enforcement” has been promoted by groups like the Center for Immigration Studies and the Immigration Reform Law Institute (credited with drafting the bill) as a way to oppose comprehensive immigration reform. These groups are central to similar state and local anti-immigration efforts around the country.
Q: What does the bill actually do?
A: SB 1070 creates new state immigration crimes and expands the power of police to enforce immigration law (including civil infractions) with the intention of making it so difficult to live in Arizona that illegal immigrants flee the state rather than risk arrest. It also eliminates discretion of law enforcement agencies and local communities to choose how to use local resources by requiring full enforcement of federal immigration law and by giving individual citizens unprecedented authority to sue law enforcement agencies if they are perceived as not fully enforcing federal or state immigration law.
■Makes it a misdemeanor to fail to carry proper immigration documents with a maximum fine of $100 and up to 20 days in jail for the first violation and up to 30 days in jail for a subsequent violation.
■Makes it a misdemeanor to attempt to hire day laborers if the driver is impeding the normal flow of traffic.
■Makes it illegal for a worker to get into a car if it is impeding traffic.
■Makes it illegal for unauthorized immigrants to solicit work in any public space.
■Makes it unlawful for any person to transport, move, conceal, harbor, or shield from detection any unauthorized immigrant if the person knows or recklessly disregards the fact that the immigrant is in the U.S. illegally.
■Mandates the impoundment of any vehicle used to transport, move, conceal, harbor, or shield an unauthorized immigrant.
■Explicitly requires state and local law enforcement officials to inquire about immigration status during any lawful stop, detention, or arrest.
■Authorizes local police to make an arrest without a warrant of any personthey believe is “removable from the United States.”
■Allows officers to detain the person to make inquiries into immigration status if the person cannot produce valid documents.
■An officer may not release someone from custody until immigration status has been verified.
■Prohibits cities, towns, and counties from having any policy in place that limits the investigation of violations of federal immigration laws. Many localities have “community policing policies” that enhance trust and cooperation between police and immigrant communities by not asking people who have not been arrested, including victims and witnesses to crimes, for their documents.
■Allows private citizens to sue state law enforcement agencies if the private citizens believe law enforcement is not enforcing federal immigration laws to their liking.
Q: Didn’t subsequent amendments clean up these problems?
A: A week after Gov. Brewer signed the law, the state legislature amended it to address some of the most egregious concerns, such as changing the requirement that police must determine immigration status during any “lawful contact” (for instance, saying hello to a bunch of kids in front of an ice cream stand, giving directions, helping a lost child) to any “lawful stop, detention, or arrest” (for instance, a traffic stop). While this limits the reach of the law somewhat, the legislature also made it clear that police must make immigration inquiries in response to any “law or ordinance of a county, city, or town” which means that noise complaints, leaving a disabled car on the street, or failing to recycle could lead to questions about immigration status. According to correspondence between sponsor Arizona State Senator Russell Pearce and Kris Kobach of the Immigration Reform Law Institute, these two changes made together ensure that virtually any contact could still allow police to “initiate [immigration] queries as well.”
Similarly, the legislature eliminated language that would prohibit basing a reasonable suspicion that a person is in the country illegally based “solely” on race or ethnicity but gave no guidance as to what constitutes a reasonable suspicion. While the courts will end up deciding whether these cosmetic changes skirt the Constitution, the practical effect of both provisions is likely to mean that U.S. citizens, lawful permanent residents, and other legal residents and visitors may still be subject to discrimination and racial profiling if the law goes into effect.
Q: Arizona supporters of the law say it just mirrors federal law—what’s wrong with states copying federal law?
A: The Arizona law goes well beyond federal law, copying the words of certain immigration statutes, but imposing new and often more severe penalties than the federal law. This creates difficult and complex jurisdictional issues, as the federal government has been given the exclusive power to regulate immigration law, especially civil immigration law. Thus, even if Arizona law enforcement arrests every undocumented person in the state, it is still up to the federal government to ultimately charge them, put them in immigration proceedings, and if necessary, deport them. In other words, Arizona’s state crimes only mirror federal law in their language, not in their effect. Even federal-state partnerships, such as 287(g) agreements, only give trained law enforcement officers the authority to assist in enforcing federal civil immigration law—carrying out the consequences (penalties, relief, removal) remains a federal responsibility. Thus, the Arizona law heaps new punishments on people without actually solving the underlying immigration issue, what one immigration law expert has called using an “iron fist” toward immigrants in order to force the federal government to deport people.
Q: But if you don’t have papers, you are probably here illegally and the federal government is going to want to deport you anyway, so what’s the harm?
A: Proponents argue that racial profiling is banned and therefore it’s not going to happen, but the law opens the door to intrusive questioning for anyone where there is a suspicion that the individual may be here illegally. While most U.S. citizens do not carry their passports, lack of such documentation could subject people to lengthy questioning, and possibly arrest or detention, if they cannot persuade an officer that they are in the U.S. legally. In particular, critics fear that persons who are Hispanic or dark-skinned, who have accents, or otherwise appear “different” are more likely to face racial profiling given the demographics of illegal immigration.
Determining whether or not someone is in the country unlawfully is not as simple as checking a database. Under the civil immigration system, most people are entitled to appear before an immigration judge before they are officially determined to be here illegally and in the process they have the right to challenge that determination, apply for relief from removal (such as asylum), and have their day in court. The Arizona law circumvents that process, potentially punishing people for being here illegally based solely on the determination of a state law enforcement officer or a federal agency before a full determination has been made.
DEBUNKING THE MYTHS BEHIND SB 1070
SB 1070 and CRIME
Q: Didn’t the state legislature need to do something about the crime caused by illegal immigration in Arizona?
A: Despite the claims that SB 1070 was needed to fight crime in the state, Arizona’s crime rate has been falling for years.
According to data from the U.S. Bureau of Justice Statistics, the rates for both property crime and violent crime (including murder, assault, and rape) have been falling in Arizona in recent years.
■The violent crime rate fell from 512 per 100,000 people in 2005 to 447 per 100,000 people in 2008, the last year for which data is available.
■The property crime rate fell from 5,850 per 100,000 people in 2005 to 4,291 per 100,000 people in 2008.
■Rates for murder, aggravated assault, and rape in particular have clearly fallen in recent years.
Q: Don’t illegal immigrants cause crime?
A: Unauthorized immigration is not associated with higher crime rates.
■ Although the unauthorized immigrant population doubled to about 12 million from 1994 to 2004, data from the Bureau of Justice Statistics indicates that the violent crime rate in the United States declined by 35.1 percent during this time and the property crime rate fell by 25.0 percent.
■The decline in crime rates was not just national, but also occurred in border cities and other cities with large immigrant populations such as San Diego, El Paso, Los Angeles, New York, Chicago, and Miami.
Q: But surely there is a rise in border crime related to illegal immigration?
A: Border cities are not necessarily prone to higher crime due simply to their location. As a story in Reason Magazine describes, El Paso, Texas—which is a relatively poor and heavily Latino city that is home to many unauthorized immigrants—is among the safest big cities in the United States, even though it is next door to the violence-ridden Mexican city of Ciudad Juarez.
Q: What about the kidnappings in Phoenix that have received so much media attention?
A: There are serious issues relating to human trafficking that need to be addressed, but SB 1070 won’t stop the kind of kidnappings going on today. Most of these kidnappings are occurring among members of criminal gangs that smuggle drugs, guns, and unauthorized immigrants—or are targeting unauthorized immigrants who are in the process of being smuggled.
■A May 2010 report by the Rocky Mountain Information Network notes that “Phoenix ranks only behind Mexico City in the number of kidnappings, most if not all of which are tied to drug cartels in Mexico.” Moreover, “undocumented aliens are held against their will by human smugglers and traffickers at ‘drop house’ locations throughout Phoenix and surrounding cities.”
■In explaining the large number of kidnappings which have occurred in the Phoenix area, police Sgt. Tommy Thompson told The Arizona Republic in July 2009: “We’re talking about drop houses where people who have used coyotes to get into the country may be held for ransom. And we’re talking about the kidnapping of smugglers and associates. I have no fear that my kids or grandkids will be victims.”
SB 1070 AND COMMUNITY SAFETY
Q: Won’t strong state immigration enforcement make Arizona’s communities safer?
A: Judging from the example of Maricopa County under Sheriff Joe Arpaio, SB 1070 is likely to divert law-enforcement resources away from important crime-fighting tasks, and crime might actually increase. It may also erode the trust between the police and the communities they serve meaning that victims and witnesses to crimes may not come forward and report crimes. This makes everyone in the community less safe..
■The East Valley Tribune found that, as Sheriff Arpaio has diverted his department’s resources to immigration enforcement, response times to 911 calls have increased, arrest rates have dropped, and thousands of felony warrants have not been served.
Q: Was this law needed to give police the authority to arrest immigrants?
A: No. The police have always had the authority to arrest immigrants for crimes they commit. If a police officer sees an immigrant commit a crime (such as theft or murder) or suspects that an immigrant has committed a crime, that police officer can arrest that immigrant for that crime. The police also have the authority to arrest immigrants for criminal violations of immigration law, such as re-entering the U.S. after being deported. Furthermore, the police have always had the ability to contact ICE and inquire about an arrestee’s immigration status, and many prisons and jails have an ICE presence, so that immigrants can be identified and placed into removal proceedings.
However, state and local police have been limited in their authority to enforce civil violations of immigration law, such as working without authorization or failing to carry documents. There are special programs that police can already use to get additional authority; for example police may enter into 287(g) agreements with ICE, which gives them the authority to enforce civil violations of immigration laws. Several police agencies in Arizona have these agreements already.
SB 1070 takes federal, civil violations of immigration law and creates a new state crimes, allowing state and local police to make criminal arrests for violations of civil immigration law. Whether or not Arizona can do this is a constitutional issue that will be addressed by the courts.
Q: Will SB 1070 help police catch serious criminals?
A: Probably not. In fact, if police spend their time detaining and questioning people they suspect of being immigrants, it will detract from their ability to investigate and solve more serious crimes. In Maricopa County, Sheriff Arpaio has focused on immigration violations and, as a result, has arrested few major criminals:
■Despite the time and energy spent on immigration enforcement, the East Valley Tribune found that Sheriff Arpaio has had little success in building cases against violent immigrant offenders or those at the top of smuggling rings.
■In 2006-2007, Maricopa County sheriff’s deputies arrested 578 illegal immigrants in the course of traffic stops, and—of those—498 faced a single charge of conspiracy to smuggle themselves.
Q: Do law enforcement officials support this law?
A: According to police officials, laws like Arizona’s will make it more difficult for police officers to do their jobs.
Many top law enforcement officials have opposed the law, including the Arizona Association of Chiefs of Police. They say that the law will harm their ability to protect the community and alienate police officers from the communities they serve. The law will also force police officers to devote scarce resources to investigating immigrants’ status rather than solving serious crimes.
Arizona Association of Chiefs of Police
“The provisions of the bill remain problematic and will negatively affect the ability of law enforcement agencies across the state to fulfill their many responsibilities in a timely manner. While AACOP recognizes immigration as a significant issue in Arizona, we remain strong in our belief that it is an issue most appropriately addressed at the federal level.”
Sheriff Clarence Dupnik, Pima County, AZ
“…in the past few weeks Arizona became a model for the rest of the country of what not to do. I have an enormous amount of respect for the men and women of my department… But no one can tell them what an illegal immigrant looks like and when it is ok to begin questioning a person along those lines. This law puts them in a no-win situation: They will be forced to offend and anger someone who is perhaps a citizen or here legally when they ask to see his papers—or be accused of nonfeasance because they do not. Law enforcement did not ask for and does not need this new tool. What we do need is assistance from the federal government in the form of effective strategies to secure the border. Additionally, the federal government must take up this issue in the form of comprehensive immigration reform policy.”
Chief Robert Davis, San Jose, CA, president of the Major Cities Chiefs Association
“[Regarding the Arizona legislation, the Major Cities Chiefs Association stands by its policy that] immigration enforcement by local police would likely negatively effect and undermine the level of trust and cooperation between local police and immigrant communities.”
Sergeant Brian Soller, Mesa, AZ; President, Mesa Lodge, Fraternal Order of Police
“If we’re getting hammered with calls, is a misdemeanor [trespassing by an illegal immigrant] more important than a stabbing or shooting? No. The problem with this law is that it’s an unfunded mandate and could eat up a lot of manpower and cost a lot of money.”
THE FINANCIAL COST OF SB 1070
Q: What will it cost to implement SB 1070 in Arizona?
A: Implementation of SB 1070 will be very expensive at a time when the state is already struggling financially.
■The Arizona legislature failed to produce a fiscal analysis on how much SB 1070 will cost the state before passage of the bill. However, a fact sheet produced by Yuma County Sheriff Ralph E. Ogden in response to similar legislation proposed in 2006 provides some quantifiable data. Yuma County is one of Arizona’s 15 counties, with a population of about 200,000. The 2006 fact sheet estimates the costs of a similar bill which would have authorized the police to arrest illegal immigrants on trespassing charges if they were simply present in the state. It shows a staggering potential cost to Yuma County law-enforcement agencies from the moment of arrest to the point of conviction, sentencing and incarceration.
■The Sheriff estimated that:
● Law-enforcement agencies would spend between $775,880 and $1,163,820 in processing expenses;
● Jail costs would be between $21,195,600 and $96,086,720;
● Attorney and staff fees would be $810,067-$1,620,134;
● Additional detention facilities would have to be built at unknown costs.
● In addition, the Superior Court, Justice Courts, Juvenile Courts, and Municipal Courts would also realize increased costs for additional court staff, interpreters, administrative staff, and pre-trial services.
● Multiplying this among all 15 counties means the costs of implementing SB 1070 could rise into the 100s of millions of dollars for the state.
Q: Isn’t it time for states to take matters into their own hands?
A: No. While people are genuinely frustrated over the failure of the federal government to fix our broken immigration system, creating a patchwork of potentially unconstitutional and confusing laws is not an answer. A recent poll conducted by MSNBC and Telemundo shows that people don’t necessarily want states to jump into the fray as much as they want solutions. So, while 61% of those polled supported Arizona’s law, 60 % also supported comprehensive immigration reform. And when you dig deeper, it becomes clear that laws like SB 1070 have the potential to aggravate ethnic divides—the poll found that 70% of whites support Arizona’s law while only 35% of Latinos support it—and 58% of Latinos strongly oppose the law.
Q: But the federal government hasn’t done anything, has it?
A: For more than two decades, the U.S. government has tried without success to stamp out unauthorized immigration through enforcement efforts at the border and in the interior of the country without fundamentally reforming the broken immigration system that spurs unauthorized immigration in the first place. Ironically, while billions upon billions of dollars have been poured into enforcement, the number of unauthorized immigrants in the United States has increased dramatically.
■The annual budget of the U.S. Border Patrol stood at $3.0 billion in Fiscal Year (FY) 2009 – a nine-fold increase since FY 1992. The number of Border Patrol agents stationed along the southwest border with Mexico grew to 16,974 in FY 2009 – a nearly five-fold increase since FY 1992.
■Yet, the unauthorized-immigrant population of the United States has tripled in size, from roughly 3.5 million in 1990 to 11.9 million in 2008.
Q: What is the solution?
A: If we want to avoid creating a patchwork of potentially unconstitutional laws that attempt to regulate national immigration policy state-by-state, then we must fix our broken immigration system. Arizona is not alone in its frustration, but the focus on border security fails to tell the real story of our immigration crisis. The problems are complex but there are real solutions. The enforcement-only approach to our immigration problems is clearly not yielding the results needed. It is time for Congress and the President to propose comprehensive solutions that recognize the complexity and balance needed for an orderly and fair immigration system. A comprehensive approach to immigration reform recognizes that illegal immigration will never be stopped solely by building fences and putting the National Guard on the border. It requires addressing the reasons people come to the U.S.—to work, to be with family, to build a new life—by ensuring that we have a legal immigration system that meets the demands of our economy and our families, that requires people who are here illegally to register, pay taxes, learn English and commit to the system, and that uses smart workplace, border, and interior enforcement strategies to enforce our laws.