Once again, I have to point you in the direction of a friend of mine who wrote an excellent article entitled, “Duty Free.”

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Much dialogue on marijuana in the last few decades has centered around the large rates of incarceration and the exorbitant cost of imprisonment. According to estimates in Eric Schlosser’s book Reefer Madness, some 20,000 inmates are currently imprisoned primarily for a marijuana charge. Proponents for legalization have a valid point when they argue that if marijuana were no longer criminalized, it would save the United States millions of dollars in lost labor and imprisonment fees.

What is more bizarre, then, is that very few politicians or advocates have spoken loudly or clearly on the topic of immigrant criminalization. With more than 12 million undocumented immigrants currently living and working in the United States, this number defies all logical enforcement and flouts our underfunded prisons.

There are essentially two types of bad legislation. Some failed legislation are good laws badly enforced, as in the case of the Emancipation Proclamation or school desegregation in the South. Both of these were good laws which lacked a concerted effort at universal, uniform enforcement. While some states succeeded in integrating students of all ethnicities, many states found loopholes and ways to thwart real enforcement.

The other sort of bad legislation are bad laws impossible to enforce. Prohibition, as laid forth in the 18th Amendment, was a good moral choice but bad legislation. State-mandated alcohol abstinence was impossible to enforce; it succeeded in little more than feeding mob activity and criminalizing thousands of people who up to this point had been law-abiding citizens.

Our current immigration system in the United States would fit into the latter category. With over 12 million illegalized citizens, it is fiscally and theoretically impossible to punish, discipline, fine, imprison, or detain every extralegal immigrant in the U.S. Its enforcement is impossible, but that has not stopped us from pouring $6.7 billion dollars into border security for 2007. Border security received more than a 3% raise from 2006, while education funds remained essentially the same and emergency funds were cut by 2%, even in the wake of the Katrina fiasco. With all these increased border security measures, the cost to apprehend a single illegal immigrant crossing the border has risen from $300 in 1992 to $1700 in 2002. And we still have over 12 million undocumented immigrants.

The only immigration reform which has been approved in the past few years has been in bulking up our border security. However, that is missing the crux of this situation – this is ultimately self-defeating, prohibitively expensive, and impossible to enforce.

Martin Luther King, Jr., in his outspoken speeched against Vietnam, stated that, “Justice is indivisible.” To have a law on the books which is unjust and not being enforced is to shake the very bastions upon which our justice system stands. Ultimately we must join with King in agreeing that, “no document from human hands can make these humans any less our brothers.” While amnesty will not solve everything, offering a feasible path towards citizenship for potential illegal immigrants as well as undocumented workers currently residing in the U.S. will begin to address this article of failed legislation and this pock upon our moral countenance.

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bill-richardson-2.jpgIn an earlier post, I linked to this speech by Governor Richardson, delivered at Georgetown University.

A Manhattan law firm, Teplen and Associates, summarized the speech this way.

In his statement Governor Richardson outlined four steps which must be taken in order to solve this problem in a realistic fashion: 1) secure the border, 2) increase legal immigration, 3) prevent employers from hiring employees without proper work authorization, and 4) provide a path to legalization.

I responded, but Teplen and Associates does not seem to be taking comments on its blog any longer, so I will post my response here.


In order to be successful, step 2 must precede step 1.

The only way to completely secure the border is to allow people seeking employment to immigrate. People would much rather cross the border at a checkpoint than brave the Rio Bravo (Rio Grande) or the hot Sonoran desert, but as long as immigrants believe these natural barriers are more navigable than our immigration laws, we will continue to have no idea who enters this country.

And in order to be moral, step 4 must precede step 3.

As long as the federal government prevents those who wish to change their legal status from doing so, the government is in essence mandating that employers discriminate based on a classification virtually indistinguishable from race.

This is a revisited speech, but I post it again because so much of the prevailing thinking in Congress is exactly backwards.

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The popular debate in the media over immigration is almost always about what the ideal immigration policy should be, from the financial perspective of native born U.S. citizens. This is an awful way to debate an issue that is entirely a question of human rights, as I see this issue. But let me make it clear, this campaign is for those who reject the current debate and affirm that this is an issue of rights. Specifically, it is for those who would like to see the right for free movement of people across borders to be acknowledged and protected by the United States.Given that purpose, what about the wall? What about the National Guard at the border? What about the House bill to make crossing the border without permission a felony? Well, all of that gets sorted out in unexpected ways when you decide that your ultimate goal is to secure the right of free migration.

For instance, I personally hope that “illegal” immigration does become a felony, but for very different reasons than those who proposed the law. I would like to see so-called “illegal” immigration become a felony for two reasons. First, as Dr. King said, “I know that only when the night is dark enough can you see the stars.” I plan to use the methods of nonviolent civil disobedience as developed by Mohandas Gandhi and Martin Luther King Jr. to bring about a dramatic change in immigration policy, and I believe that those methods are more likely to be successful if the civilly disobedient activist is jailed rather than deported. Second, under the current legal tradition, immigration law is unprotected by the Constitution because the Supreme Court has abdicated its role as it relates to immigration law. But I feel very confident that if immigration were tied to criminal law rather than administrative law, the Supreme Court would have to take up the issue. If it did, the Court would have very little choice but to make drastic changes in the law because our current immigration law is explicitly sexist and implicitly racist. The Supreme Court itself has said as much, but has said that Congress is in charge of immigration law (the plenary power doctrine), so they can be as sexist and racist as they want to be. This is an abdication that I do not believe they would continue if immigration violations were made criminal.

Because the current debate encourages us to think in a very limited way, I invite you to do your own research on the right of free movement across borders.

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Let me give you an example of the ways that the current problems associated with so-called “illegal” immigration stem not from immigration, but from the illegalization of immigration. Many feel, and you will hear this common in the media, that because we are not in control of our borders, the United States of America is vulnerable to attack from terrorists who enter the country without permission.

Any honest person must admit that none or almost none of those crossing the border are terrorists. Almost all border crossers–whether they enter with documentation at a checkpoint or run through the desert in the middle of the night–are seeking a better life for themselves and their families. From an economic point of view, these migrants are supplying the labor our economy demands. But a few that cross are not so well-intentioned. A few cross, not to supply labor, but to supply drugs. Unlike the common references to the border and terrorism, drug trafficking through our borders is not hyperbole, but is in reality a huge problem for border communities, on both sides of the border. Whether you believe the hype about terrorists crossing the border illegally, or you consider the real problem of drug smuggling at the border, the basic problem is that there are so many “illegal” crossings that the border patrol cannot control the border. But while many argue that we should further militarize the border by building a wall, bringing the National Guard, etc., the solution to our problem is exactly the opposite.

If we did not prohibit laborers from immigrating, allowing all persons who could pass a criminal background check to enter the country at a checkpoint, where their belongings would be searched, then we could be certain that the only people running through the desert in the middle of the night are people who could not pass the criminal background check or who, if we searched their belongings, would not be allowed to enter the country. Rather than searching for a few needles in a very large haystack, we would get rid of the haystack and only have a few, well-exposed, needles. And that is a group that we could control. Furthermore, this is a group that we should want to control. In stead of being stretched thin by chasing millions of immigrant laborers through the desert, the border patrol would have enough resources to prevent every one of the hundreds of drug traffickers.

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