Factcheck: SB 1070 allows for some racial profiling
Not just a mirror of federal law, allows profiling that courts permit already
We’ll leave it to others to decide whether Arizona’s new immigration law is a good thing or a bad thing — but here we try to straighten out some of the confusing factual claims. First, a quick summary. Contrary to what the law’s defenders often say, the new statute does more than merely mirror federal law. For example:
- • It’s a state crime for an illegal immigrant to apply for a job, or to solicit work publicly.
- • The law also makes it a misdemeanor for a citizen driving a vehicle to stop to hire anyone if that "impedes" traffic.
- • Citizens will be able to sue officials or agencies whose policies interfere with vigorous enforcement of federal immigration law.
On the much-discussed issue of whether the law permits or encourages "racial profiling," we find:
- • The amended law allows police to consider "race, color or national origin" when deciding whether to ask somebody for proof of citizenship, but only to the extent already deemed constitutional by the courts.
- • It remains to be seen how police will interpret the law’s anti-profiling language in practice. State officials tell us they have yet to work out what factors police should be trained to use to establish "reasonable suspicion" of illegal status.
- • Federal officials are open to criticisms similar to some of those being made about Arizona’s law. A federal manual for training state and local officials says they may consider whether a person has a "thick foreign accent" or looks "out of place" when deciding whether to ask them about their immigration status.
Finally, we examine a widely circulated chain e-mail written by an Arizona state senator who supports the law, and find her claims to be misleading. The violence against ranchers that she describes is real, but it is the work of Mexican crime cartels, not illegal immigrants.
Recently, Arizona Gov. Jan Brewer posted a video that uses a frog puppet to mock critics of the state’s new immigration law for not having actually read it. We’re asked to sing along with the amphibian as he croaks, "reading helps you know what you’re talking about."
Well, we’ve read it (take that, frog!). Below, we try to address a few of the questions and misperceptions that seem to go hand-in-hand with the get-tough statute that targets illegal aliens.
According to a report by the Pew Hispanic Center, there were an estimated 500,000 illegal immigrants living in Arizona in 2008. The state wants that number to drop. In its first paragraph, the new law says that "the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona."
Doesn’t the Arizona law just mirror federal immigration law?
Brewer has responded to critics of her state’s law – commonly referred to as S.B. 1070 – by saying it replicates federal law.
Brewer, April 30: Our law mirrors federal law. So, why is it bad for Arizona to mirror federal law? No one was crying out in the wilderness about the federal law being wrong or racial profiling. I don’t get it. It’s spin.
To a degree, she’s right. Arizona’s new statute contains provisions that criminalize, at the state level, certain conduct that’s already a violation of federal immigration law. For instance, immigrants are required under both state and federal laws to carry their alien registration documents or other applicable records at all times – in federal law that’s under 8 USC sec.1304 and 8 USC sec. 1306.
Other parts of the state law, though, don’t exist at the federal level. They include section 5A, making it illegal for a driver to stop and attempt to hire or to hire and pick up passengers, if that action impedes traffic; for a person to get into someone’s vehicle in order to be hired; or for an illegal alien to apply for work or solicit work publicly in the state. Most of this is aimed at day laborers and those who hire them.
Another example: Section 2H allows any citizen to sue an official or agency in the state who "adopts or implements a policy that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law."
And section 2B of the new law requires law enforcement officers to try to check the immigration status of anyone they lawfully stop if they have "reasonable suspicion" the person might be an unauthorized immigrant. (More on this provision later).
But why the outcry? These people are here illegally, right?
There are plenty of features of the law that critics find objectionable. Among them are the penalties. Under federal law, violations of immigration statutes by someone in the U.S. illegally may in some cases be punished with a jail sentence but are often penalized by deporting the individual instead, if the government proves its case to a judge through a comprehensive set of procedures. Arizona, lacking the authority to deport anyone, will enforce jail sentences laid out in its new law for, say, failing to carry one’s immigration authorization documents or soliciting day work by the side of the road, said Mary Giovagnoli, director of the Immigration Policy Center, a pro-immigrants’ rights group. While the federal system is far from perfect (thousands of people are locked up in federal detention centers indefinitely awaiting deportation decisions), the addition of new immigration crimes at the state level with jail time attached isn’t the answer, she added.
Some Arizona police chiefs and other state officials oppose the law, in no small part because of the provision allowing citizens to sue them, as described above. Fans of that measure see it as a way to get authorities to enforce the law. But Phoenix Police Chief Jack Harris suggested it’s at best superfluous in terms of helping local law enforcement combat serious crime.
Harris, April 30: Proponents of this legislation have repeatedly said that the new law provides a tool for local law enforcement, but I don’t really believe that that’s true or accurate. We have the tools that we need to enforce laws in this state to reduce property crime and to reduce violent crime, to go after criminals that are responsible for human smuggling, to go after criminals that are responsible for those home invasions, kidnappings, robberies, murders.
He and some other Arizona chiefs say the statute could actually hurt their efforts to fight serious crime because they will have to devote time and resources to enforcing the immigration provisions. The law also will make illegal immigrants who are crime victims or witnesses more leery of cooperating with law enforcement, they predicted.
Perhaps the single biggest reason this law is so controversial is that immigration – like, say, foreign policy – always has been the purview of the federal government. The feds’ authority is rooted in Article I, section 8 of the U.S. Constitution, which gives Congress the power to "establish a uniform rule of naturalization." As a practical matter, said Kevin Johnson, an immigration law expert and dean of the University of California at Davis School of Law, it’s unworkable for states to have their own immigration laws, "just like states can’t have their own foreign policies." He noted that "the federal government is more inclined to consider the national interest." For that reason, Johnson believes that legal challenges to the law – several have already been filed, and the Obama administration is also considering a lawsuit – are likely to succeed under the federal preemption doctrine, which is based on the Constitution’s Article VI, clause 2. Known as the supremacy clause, it says that federal law shall bind "judges in every state" even if state law contradicts it.
At the same time, at least 22 other states are considering legislation similar to Arizona’s.
Does the law allow racial or ethnic profiling?
There’s been so much controversy about this question that the legislature went back and amended the law the week after it was signed by the governor. The final version requires police to try to determine the immigration status of any person who has been stopped, detained, or arrested and "reasonable suspicion exists that the person is an alien." Could reasonable suspicion be based on skin color or a Mexican accent? Here’s what it says:
Senate Bill 1070: A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution.
The unamended version said race et al., couldn’t be the "sole" factors. But the statute doesn’t detail what "reasonable suspicion" might include. And the phrase "except to the extent permitted" by the federal or state constitutions leaves even more ambiguity, because courts have upheld the use of race or ethnicity in some circumstances. In an annotated version of the law reprinted by The Arizona Republic, University of Arizona law professor Gabriel Chin writes that there are "many open questions" regarding whether race could be used in enforcing S.B. 1070. But he also said, "I am deeply surprised that anyone construes this law to prohibit racial profiling."
Ediberto Roman, a professor of law at Florida International University, goes even farther. "It’s pretext to try to suggest that there is no discriminatory purpose," he told us. "Given that there is a lack of any other basis in terms of how they’re going to enforce it, it’s pretty clear that we’re looking to focus on a particular target group."
Though the law only allows officials to ask for proof of citizenship in the case of "legal stop, detention or arrest," this doesn’t limit the questioning to suspected criminals — it can include those who are detained as victims of or witnesses to a crime, or people accused of violating local ordinances like noise laws or loitering laws. Roman is concerned that police will be more likely to both stop and to question those who they think look like immigrants. "The legislature was pretty careful in following criminal procedure notions, but it’s the discretion in how the law enforcement will use criminal procedure [that] is how the racial profiling comes into play," he said.
Lyle Mann, director of the state government’s Arizona Peace Officer Standards and Training Board (AzPOST), which provides curricula and standards for law enforcement training, assured us that Arizona’s law enforcement officials will be instructed in the letter of the law, which prohibits considering race or ethnicity as a factor. AzPOST is developing a training curriculum for law enforcement departments on how to go about enforcing S.B. 1070. The outline for the program shows that AzPOST will be laying out guidelines for what constitutes "reasonable suspicion," but Mann wasn’t able to tell us yet what they will be. He did say, however, that they would focus on how to avoid profiling while upholding the law. "While I can’t tell you what will be the list of factors for reasonable suspicion," he said, "I can tell you one factor that will not be listed is race, nationality or ethnicity." Still, ultimately individual departments will have control over what they consider "reasonable." Mann told us: "Making use of the training is individual agencies’ decision. But we happen to believe that everybody will use our product, because it’s a good product."
Some of the same criticism that is aimed at state law enforcement on the subject of profiling also can be leveled at the feds. Under section 287(g) of the federal Immigration and Nationality Act, state and local officials can be authorized to enforce federal immigration law after receiving four weeks of training. But listed in the training manual for that program, according to the New York Times, are several factors that authorities can use to begin questioning an individual’s immigration status that include: "Does the subject have a thick foreign accent or appear not to speak English?" and "Does the subject’s appearance look like it is ‘out of place’?" According to the Times, federal officials said they were revising the manual and that several other factors must be considered.
The Arizona law also prohibits state or local officials from prosecuting illegal immigration “to less than the full extent permitted by federal law.” As Chin and three other Arizona law professors wrote in a recent report: "Since federal law permits race to be a ‘relevant factor’ in determining reasonable suspicion for stops and inquiries, the combined effect of these provisions may be to require state actors to use race to the full extent permitted by federal law."
According to the Supreme Court case United States v. Brignoni-Ponce, "Mexican appearance" can be a factor justifying an immigration stop. But 24 years later the Ninth Circuit Court of Appeals, in United States v. Montero-Camargo, ruled that “Hispanic appearance is not, in general, an appropriate factor” for determining suspicion, especially in areas with large Hispanic populations. “This makes it more complex whether race can be a factor in an immigration stop in the Ninth Circuit’s jurisdiction, which includes Arizona,” Johnson told us.
So, does the law allow racial or ethnic profiling? It may, though no more than it’s already allowed under current law. But that’s a different question from whether or not such profiling will be used to a greater extent by Arizona law enforcement as a result of the legislation, which remains to be seen.
Sylvia Allen’s Claims
State Sen. Sylvia Allen, who voted in favor of the bill, wrote a defense of her vote which has been widely forwarded as a chain e-mail. Some readers have asked us whether Allen is the real author of the piece, because they find the letter’s many punctuation errors suspicious. She is, but Allen’s office told us that an early draft of the piece was leaked, possibly by a family member. They sent us a corrected version, but the one with errors is already enshrined in the e-mail.
In her piece, Allen cites complaints by Arizona ranchers about violence and vandalism on their property committed by “illegals.” She refers to testimony by several ranchers, who addressed the Arizona Senate on April 13, 2010. But the testimony makes it clear that the violence is not committed by people who try to emigrate to find work, but by gangs who exploit those people to move drugs. Patrick Bray of the Arizona Cattlemen’s Association told us that the drug cartels responsible for violence on the Arizona border are not “immigrants” – they are headquartered in northern Mexico, but move back and forth across the border for drug trade. They go 30 or 40 miles into the United States, Bray told us, and then head back south. They will use would-be immigrants to move drugs across the border under threat, but the gang members themselves are not trying to live or get work in Arizona, which is the situation covered by the new law. It’s “a complete coincidence” that the law was passed while ranchers were trying to raise awareness of border violence, Bray told us.
The ACA doesn’t take a position on the immigration law, Bray said, though its members appreciate the way it’s drummed up interest in Arizona. The law addresses a separate issue that may not have any effect on the violence Allen cites. “Our focus is completely on border security,” he said. “The law didn’t put any resource or assets on the border, but it certainly has gotten the attention of the nation and this administration. … We would agree that securing the border is a separate issue from immigration reform [but] we do have significant trouble with a very well-organized criminal syndicate down in Mexico.”
Allen’s piece conflates border security with immigration law, and undocumented immigrants with Mexico-based criminal organizations. These are related — the same groups may be involved in smuggling humans and drugs across the border. But they are not the same thing.
The e-mail has several factual problems, as well. It says that “rancher Rob Krantz [sic] was murdered by the drug cartel on his home ranch.” The leading theory is that he was killed by a drug smuggler, but the circumstances of Robert Krentz’s death are still under investigation. And if the theory proves true, this has nothing to do with immigrants living in Arizona. The piece also references ranchers finding “Koran bibles,” but there is no such thing – the Koran and the Bible are different texts. Bray did tell us that it’s true that the smugglers are not all of Mexican origin, and said that some were Middle Eastern (others, he said, are Chinese or Russian). As for the statistic that “In the last few years 80% of our law enforcement that have been killed or wounded have been by an illegal,” an Arizona Department of Public Safety spokesperson told us the department doesn’t separate out crimes that have been committed by citizens versus non-citizens. Allen’s office told us that she wasn’t sure of the statistic’s provenance. "We did manage to search out via newspaper and court convictions that 7 of 24 officers who were killed between 1998 and 2008 were killed by illegals," Allen’s assistant Karen Winfield said. "That’s nearly a third during that time period. We are also working our way through public testimony that was recorded at hearings here in the Senate to see if we can pick up the 80 percent number there and figure out who said it."
We would also note, as we have previously, that crime rates were at historic lows in 2008 in Arizona, the most recent year for which figures are available. The violent crime rate was the lowest since 1966, while the property crime rate was the lowest since 1971.