As someone who’s lived in Arizona for over 10 years, and who has been actively involved in the immigration debate, I was excited to help the moderator of this program, Ron Wheeler, find speakers and information on the topic. The program itself surpassed all my expectations. Two distinguished speakers debated the topic: Professor Andy Silverman, Joseph M. Livermore Professor of Law and Director of Clinical Program, James E. Rogers College of Law, The University of Arizona (www.law.arizona.edu/faculty/facultyprofile.cfm?facultyid=17); and Representative John Kavanagh, Arizona House of Representatives, former policeman, and professor of criminal justice at Arizona State University and other institutions in the Phoenix area (www.azleg.state.az.us/memberspage.asp?member_id=27&legislature=48). Each speaker was given 15 minutes to lay out his position, and 5 minutes each for rebuttal. The remaining time was used for questions and answers from the audience. The moderator kept tight control over the time so that both speakers had an opportunity to make their points.
Prof. Silverman began with a short description of what the law does - he also provided a handout (available at www.law.arizona.edu/Library/Research/guides/SB1070overview.pdf) with this information. The new law established new immigration crimes relating to: (1) the failure to have certain immigration documents; (2) seeking to hire day laborers or to apply for work as a day laborer; and (3) transporting, harboring, or encouraging non-citizens to reside in Arizona. Other provisions require that anyone who is arrested must have their status determined before they could be released. While certain documents could presumptively be used to establish that the person was lawfully in the United States, it wasn’t clear what the effect of the presumption really would be. Racial profiling was prohibited except as allowed by the United States and Arizona constitutions; case law has allowed race to be a factor in immigration offenses, so this exception might mean that the prohibition has no real impact. Other sections stated no official or agency could limit the enforcement of federal immigration law and that private citizens could sue if they believed such a policy or practice was in effect.
Rep. Kavanagh began by explaining why the law was passed: illegal immigration has brought crime and backbreaking governmental expenses to Arizona. He believes in the rule of law which hasn’t been enforced by the current, and to a lesser extent, previous federal administrations. Allowing undocumented people to stay in the country is unfair to those who want to come in legally. He stated that the focus on police stops and federal preemption fails to note that “sanctuary” cities are also preempting federal law. He disagreed with the interpretation that all arrestees have to have their status determined before they can be released; there’s a provision that limits this to when it is practicable, with an exception when the determination might hinder an investigation. His basic point was that this statute just mimicked federal law - just letting local police help the federal authorities enforce immigration law and not in conflict with federal laws. As a retired policeman, he was sensitive to the racial profiling issue. Police want to make good arrests and if a policeman continues to make bad ones by improperly racially profiling, he and the police department will get in trouble.
In rebuttal, Prof. Silverman noted that crime rates in Arizona have been going down; expenses for jailing individuals who are arrested until their status is determined will go up; and that federal enforcement at the border has gone up tremendously, including costs of physical and virtual fences and the use of the National Guard. He noted that this is a United States-Mexico border issue, not an Arizona-Mexico, California-Mexico, Texas-Mexico issue, and has to be solved by the federal government, not state by state. He also noted that the stated intent of the law was to “make attrition through enforcement the public policy” of Arizona.
Rep. Kavanagh provided some statistics indicating that 14% of people booked into Maricopa County jails were undocumented, while it is estimated that they were only 6 - 7% of the population of the county. He believed Arizona’s border hasn’t been as secure as California’s because Arizona has a virtual fence and National Guard. We need real troops on the border.
The questions from the audience were critical of SB 1070, questioning the impact on state resources, police work with their communities, economic impact of the boycott and legal residents leaving Arizona, among other things. Rep. Kavanagh indicated that he did not believe the state would need more resources for police, jails, courts, etc., because of the cost-savings to government from fewer undocumented persons using government resources. He also indicated that the media was driving people out by creating fear and that the law only wanted to drive out those who were undocumented.
Obviously, this topic divides law librarians as it does all citizens. We probably could have used twice as much time and still wouldn’t have covered all the issues of this law.
Subsequent to this program, a judge from the United States District Court in Arizona issued a temporary injunction against major portions of SB 1070. The case has now gone to the 9th Circuit Court of Appeals and will be heard in November 2010. A copy of the District Court opinion can be read at http://www.azd.uscourts.gov/azd/courtinfo.nsf/983700DFEE44B56B0725776E005D6CCB/$file/10-1413-87.pdf.