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?

GIULIANI: No.

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.