Arizona’s Immigration Law: Unintended Consequences and Victimization

Canaff: Arizona’s New Victims

ARIZONA’S CONTROVERSIAL anti-immigrant legislation is scheduled to go into effect July 29, and whether you approve of it or not, you can be sure that it will make many criminals happy.

Professional predators often seek out individuals who won’t be believed if they dare to report crimes: those with mental health issues, disabilities, economic difficulties, or other actual or perceived characteristics that isolate or disenfranchise them. But few targets are more tempting to a predator than a person who simply won’t report at all. Hence, immigrant populations are great places to hunt.

I love Arizona. I’ve traveled every region of the state and have encountered wonderful people, breathtaking scenery, and an almost unparalleled natural diversity. I have also lived in what the Mexicans call the Frontera, or northern Sonora, where I learned the language and lived with a ranching family whose male members had much experience obtaining work in the state. I know the frustration on both sides of the border, and I can understand the sentiment of many Arizonans who believe that the federal government can’t or won’t provide the border security necessary to prevent the destabilizing effects and fiscal drain that illegal immigration can bring. As President Obama acknowledged in a policy speech on immigration delivered the same day that the Arizona law went into effect, the system is “broken,” and lack of federal legislation has prompted some states to take action.

But Arizona’s response will have one particular unintended consequence that will harm all of its citizens. Most immigrants are here because they are desperate to work and desire nothing more than to keep a very low profile. Because of that, they often stay silent about crime and abuse committed by those within their communities or even by those outside it. Their refusal to report crimes already frustrates law enforcement officials. Bets are that Arizona’s new law will make the situation worse, and not only in that state. The law will prevent victims and witnesses who are or even appear to be Latino from reporting acts against them or cooperating with police investigations.

Here’s why: despite protestations (almost always made by people whose skin color won’t put them in jeopardy) that the law does not encourage ethnic profiling, anyone who appears to be Mexican and fails to carry proof of legal residence in the United States will be in danger of at least temporary incarceration. Once arrested on “reasonable suspicion” of being in the country illegally, and with no documents on hand to demonstrate otherwise, an individual will remain incarcerated until state and federal officials determine either that the detainee should be released or deported. Many American citizens in southern Arizona were not required to learn English before they were naturalized, due to their advanced age. Many more speak with an accent. Because they look and sound like they could be a part of the targeted class (undocumented Mexicans), they might well feel panicked when they realize they’ve stumbled into a police encounter and have left their wallets or purses at home.

Kris Kobach, a conservative law professor and a drafter of the Arizona statute, suggested in a New York Times op-ed that reasonable suspicion would result from observations of actions, dress, appearance, and other intangibles. Intangibles? Some people may think you can tell an immigrant by his or her fashion statements, but the reality is that the police will go with the most identifiable traits a person has: looks and language. Although many Canadians winter in Arizona, it is unlikely that most of them will be questioned about their residency by law enforcement.

Kobach also misleads us when he suggests that only the independent observation of unlawful behavior can trigger inquiries into immigration status. The law states that police shall determine the legal status of a person upon “any lawful contact” (emphasis added), if reasonable suspicion exists. Kobach insinuates that as long as people drive carefully, they’ve got nothing to worry about it. But “lawful contact” could include a conversation between police and any “reasonably suspicious” person merely standing on a street corner. If that person cannot immediately produce proof of legal residence upon demand, the law indicates that the person must be arrested and his or her immigration status determined before being released.

Some are comforted by the provision in the law that exempts police from being required to inquire about legal status when to do so would “hinder or obstruct” an investigation. Presumably, this means that police will not make this inquiry when responding to a traffic accident, an illness manifesting itself in public, or the scene of a crime. But this language merely creates an exception, not a rule. Police are not required to determine a person’s status when to do so would obstruct or hinder an investigation in the police officer’s judgment. They may still inquire upon reasonable suspicion either because, in the officers’ judgment, the inquiry isn’t hindering the investigation or simply because they deem it important enough.

I’ve worked with police officers for years and find the vast majority to be decent and conscientious, and I don’t fear police abuse as a result of this law as much as many of its other opponents do. But the law could produce unintended consequences even with sterling police conduct. Unlike in many other countries, U.S. citizens are not required to carry identity cards. How often do readers of this Web site go to the store without proof of citizenship or legal residency on them? Under this law, those who fear they look like an “alien” will likely flee from any possible police interaction and avoid any opportunity to cooperate with them.

Supporters of this law argue that citizens and legal residents, even if mistakenly detained for a time, will in the end be released with the apologies of the state. This cavalier disregard for largely working-class people who can ill afford a day or two of lost wages ignores two things. One is how long the process of determining one’s status will take (no one knows, and the law contains no limit as to how long that pre-determination detention can continue). The second is what detained persons will suffer while that process plays out. Jailers like Sheriff Joe Arpaio, who runs the largest detention facility by far in Arizona and one of the largest in the United States, has gone out of his way to solicit media attention for how cruelly he treats his inmates. 70 percent of them are in pre-trial detention and have not been convicted of anything. Arpaio’s county (Maricopa) has paid out tens of millions in lawsuits for inmates who have been injured, killed, abused or neglected in his facilities. Few will risk being “temporarily detained” in a jail like his for any reason, and over half of Arizona’s population lives in Maricopa County and is thus potentially subject to Arpaio’s tactics.

With the law now in effect, cooperating witnesses from suspected immigrant communities will be scarce, and victims will report infrequently if at all. Predators will act accordingly and target even more victims from (or near) these suspected groups. This prediction is not just vague speculation; domestic violence shelters in Arizona are already reporting vacancies, some for the first time in their history, apparently due to undocumented persons’ fear of seeking help. As an assistant district attorney in the Bronx, my colleagues and I were often stymied by a lack of reliable witnesses because people were afraid to participate in the justice system due to their immigration status. Those who are afraid of immigrant crime and support legislation like Arizona’s are contributing to an increase in crime overall. An environment favorable to predators will attract more of them, and their presence will tear at the fabric that holds the entire community together, not just one part of it.

Roger A. Canaff is a legal expert and anti-violence advocate.

Homepage photo: A rally in May against the new Arizona law