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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