Sunday, October 21, 2007

Your Pimp Hand is Long on Palaver But Short on Slap

Passionate response to yesterday's wisdom from Freedom's Phoenix editor, J Shelton:

How is our home boundary any different than our boundary with Mexico or Canada? Since when did our the Constitution reflect that America has no boundaries? Are people so delusional that they believe there is a place called amnesty land with no boundaries or rule of law? If so, they can pack up and go there! (his emphasis)

Is exclusionary collectivism an oxymoron?

Shelton seeks to set the record straight about illegal border crossings:

Now, it may be a civil penalty to jaywalk in Tucson but entering into our home [America] without presenting yourself before you enter is danger to the American people and it is a CRIME, sorry!

Specifically, Shelton refers to 19 U.S.C. 1459 which describes the requirement for any individual arriving in the United States to report to a customs officer at a customs office. He reveals that 19 U.S.C 1459 provides for a criminal penalty for "intentionally violat[ing] any provision of subsection (e) of this section" in subsection (g). However, he glosses over subsection (f) which provides for a civil penalty for violating any provision of subsection (e).

The criminality of subsection (g) is triggered by specific intent to violate subsection (e).

Now, intent (mens rea) is an element of any illegal action and easily proved by a preponderance of evidence. If a "reasonable person" would determine that the result of a defendant's actions (or inaction) would be illegal, basic intent has been proven.

Specific intent, however, carries a higher burden of proof. One must prove not only that a "reasonable person" would foresee a violation of the statute, but that the defendant took that action specifically to violate that statute beyond a reasonable doubt.

While "ignorance of the law is no excuse" is the accepted legal standard in the United States it is not without exception. Since specific intent requires the willful violation of a specific statute, it is one of those exceptions. To prove specific intent, one has to prove that the defendant had knowledge of the statute that was violated.

19 U.S.C. 1459 is buried in Title 19 (Customs Duties), Chapter 4 (Tariff Act of 1930), Subtitle III (Administrative Provisions), Part II (Report, Entry, and Unlading of Vessels and Vehicles), Section 1459 (Reporting requirements for individuals). To prove that a defendant had knowledge of that statute, one would have to show that person is either an expert in Title 19 of the US Code or had read and understood one of the signs pictured by Shelton.

Unless the defendant is a smuggler, given the high burden of proof for the criminal penalty in 19 U.S.C. 1459, no prosecutor is going to try to get that conviction. Take Shelton, for example; while his writeup would definitively prove that he has knowledge of the statute, it also proves that he doesn't understand it.

But heck, I'm not a lawyer. Let's see what actual lawyers have to say about this. First a former immigration defense attorney, Ron Abramson:

The flaw in using local police to treat the undocumented as criminals is that an immigration violation is neither a local legal matter nor a crime.

The rationale for the perceived nobility of Chamberlain's actions is that undocumented non-citizens are inherently criminals. Chamberlain's efforts are part of a developing trend, which Boston College Law Professor Daniel Kanstroom has described as "criminalizing the undocumented."

While it may be against the law, being undocumented is not a crime, and thus immigration violators should not be treated as criminals. Still, despite all the blustery rhetoric that seeks to equate immigration violations with criminal -and often terrorist - activity, the law simply does not support the equation.

Because the distinction between criminal and civil law violations can trouble even an otherwise acute mind, an example may be useful. If a person walks out of a store without paying for an item, she commits the criminal offense of shoplifting. If the same person purchases the item with a credit card and then defaults on the bill, she may have broken the law (the contractual agreement to pay the credit card company), but the breach is not a crime. The rights, procedures and consequences implicated by the civil violation are substantially different.

Supportive, but since we all know defense attorneys lie for fun, let's hear from a former US attorney and Presidential candidate. Mayor Rudy Giuliani was interviewed on the Glenn Beck show on Sep. 7 about this very question:

GLENN: [I]sn't illegal immigration a crime in and of itself?


GLENN: Aren't you saying --

GIULIANI: Glenn --

GLENN: You're protecting criminals by saying that being treated as a criminal is unfair.

GIULIANI: Glenn, it's not a crime. I know that's very hard for people to understand, but it's not a federal crime.

GLENN: It's a misdemeanor but if you've been nailed, it is a crime. If you've been nailed, ship back and come back, it is a crime.

GIULIANI: Glenn, being an illegal immigrant, the 400,000 were not prosecuted for crimes by the federal government, nor could they be. I was U.S. attorney in the southern district of New York. So believe me, I know this. In fact, when you throw an immigrant out of the country, it's not a criminal proceeding. It's a civil proceeding.

GLENN: Is it --

GIULIANI: One of the things that congress wanted to do a year ago is to make it a crime, which indicates that it isn't.

GLENN: Should it be?

GIULIANI: Should it be? No, it shouldn't be because the government wouldn't be able to prosecute it. We couldn't prosecute 12 million people. We have only 2 million people in jail right now for all the crimes that are committed in the country, 2.5 million. If you were to make it a crime, you would have to take the resources of the criminal justice system and increase it by about 6. In other words, you'd have to take all the 800,000 police, and who knows how many police we would have to have.

Of course, Giuliani went on to describe a magical border fence with ninjas and Imperial spy drones in his next answer, so, to counteract that nonsense I'll close with another quote from Abramson:

[C]riminalizing the undocumented provides people like Chamberlain with a soapbox from which they can spew anti-immigrant invective and seek to shame the federal government into further diverting its limited resources away from measures that would truly increase national security.

While the distinction between violating a law and being a criminal may be lost on some, the fact is that a person does not check his humanity at the border. It is all too easy to target those who lack a political voice, to scapegoat them for everything from unemployment rates to suburban sprawl to rising medical costs.

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Saturday, October 20, 2007

Jaywalking in Tucson

Under Arizona statute and the Tucson Code of Ordinances, "[b]etween adjacent intersections at which traffic control signals are in operation, pedestrians shall not cross at any place except in a marked crosswalk." In other words, it is illegal to jaywalk.

If you jaywalk in Tucson, you may be cited for a "civil traffic violation." While illegal, jaywalking is not a crime, but an infraction. In the same way, speeding and parking violations are infractions, not crimes.

The thing about jaywalking, though, is that you can not undo it. If you are speeding, you can simply slow down and no longer be speeding. Or, you can move your car and no longer be parked illegally. But, once you jaywalk, you are on the other side of the street via illegal means. No amount of backtracking and reversing course can erase the fact that, from curb to curb, you jaywalked.

However, being the scofflaw you are, you look both ways for uniformed peace officers, jump off the curb, jog across the road, and pop up on the other curb. Having committed the infraction of jaywalking, is the infraction ongoing because you choose to remain on that side of the street? Of course not; it would be absurd to think otherwise.

Since you can't undo the jaywalk, an ongoing infraction of "remaining" would apply wherever you went. Your entire life would become one ongoing commission of an illegal act. Your very existence would be illegal.

What does this have to do with the price of tea in China? Well, there is another statute, a Federal statute, similarly worded, that applies to Arizona (and many other states). It can be found at 8 U.S.C 1325 and states in part (emphasis mine),

Sec. 275. [8 U.S.C. 1325]

(a) Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18, United States Code, or imprisoned not more than 6 months, or b oth, and, for a subsequent commission of any such offense, be fined under title 18, United States Code, or imprisoned not more than 2 years, or both.

(b) Any alien who is apprehended while entering (or attempting to enter) the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty of-

(1) at least $50 and not more than $250 for each such entry (or attempted entry); or

(2) twice the amount specified in paragraph (1) in the case of an alien who has been previously subject to a civil penalty under this subsection.

Civil penalties under this subsection are in addition to, and not in lieu of, any criminal or other civil penalties that may be imposed.

Note that an illegal border crossing is an infraction that carries a civil penalty, just like jaywalking. It is only a crime (and
subject to Title 18) when accompanied by fraud. And, just like jaywalking, an illegal border crossing is only punishable if one were caught in the act.

Once the border crossing has taken place, is the infraction ongoing because the border crosser chooses to stay on the US side of the border? Of course not; to think otherwise would be absurd. Since, just like jaywalking, the border crossing cannot be undone, the rest of the border crosser's life would become one ongoing commission of an illegal act. That person's very existence would become illegal whether he chose to remain in the United States or left for any other country.

And yet, in the United States, so chock full of civil liberties and equality, the rhetoric is constantly replete with reference to "illegals" and sometimes "criminals" when referring to undocumented migrants.

Now, I understand that some people are passionately anti-immigrant; the US has a history of anti-immigrant fervor since its very inception. However, I would think that someone who is so passionate about the topic would take the time to educate themselves that an illegal border crossing is not a "crime" it is a civil violation, no different than jaywalking, and that no person can be "illegal" by their very existence.

You'll excuse me if I don't hold my breath.

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Tuesday, October 02, 2007

A Big Thank-You

A gigantic thank you to Ian & Mark from Free Talk Live for their on-air read of "There Is No War on Drugs". Although I normally listen to the podcast the day after the show, I just happened to be listening live that night while I was cleaning out a storage shed. Imagine my surprise to hear words from my little corner of the Internet broadcast live on a nationally-syndicated radio show!

Free Talk Live Podcast - 9/29/07
(.mp3 27.3 MB)

Free Talk Live has enjoyed a permanent spot on my "kick-ass podcasts" list from (I believe) the beginning of this blog. I'm certainly not alone in my admiration - FTL has won the Podcast Awards' "Best Political Podcast" award 3 years in a row!

But, Free Talk Live is much more than a podcast. In a little more than four years, Ian Bernard has taken Free Talk Live from an experiment in local content on a radio station in Sarasota, FL to a nationally-syndicated show broadcast on 29 affiliates nationwide. TALKERS magazine has listed FTL in their "TALKERS 250" for two years in a row. It seems like every month I get an email from Ian telling me that two more stations are carrying Free Talk Live.

Ian & Mark, along with day hosts Gardner Goldsmith, Wayne, Toby, Nick, and Julia broadcast Monday through Saturday from 7-10 ET. They also stream the show live.

The Free Talk Live website has the last year of the show archived, its own wiki, and the only forum (the BBS) worth participating in on the entire Internet. The cost to you? Free!

Oh, and the only presidential candidate with the cajones to go live with Mark & Ian? That'd be Ron Paul! (.mp3 4.4 MB)

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