The following was contributed to the Washington Post as commentary to an opinion piece submitted by Kirk Adams the Speaker of the Arizona House of Representatives entitled "The Truth Behind Arizona's Immigration Law" .
"Having read AZ Senate Bill 1070, listened to the debate and now having read this defense of the legislation presented by the Speaker of the AZ House of Representatives I feel compelled to raise some questions.
Mr. Adams points to the fact that polls indicate that people "overwhelmingly support this law" as evidence that AZ's statute is both legal and morally appropriate. In fact, overwhelming support of a position does not necessarily make it legal or morally right. Case in point would the Jim Crowe/ segregation laws adopted by States during the period prior to enactment of federal Civil Rights legislation be considered legal or morally right by any standard? Can there be any doubt that those discriminatory laws enjoyed "overwhelming support" by the citizens of their State - Mississippi et al for example.
The argument is that S.B. 1070 merely mirrors federal law "by making it a state crime to be in this country illegally". However, S.B. 1070 actually goes further and amends the law of trespass to create an additional category of criminal trespass to the effect that "any person" (legal or illegal) is guilty of trespass if they are present in any "public or private land" in the State of AZ and cannot produce documented evidence of their status. An American citizen would be suspected of committing trespass in any part of the State of AZ if they were not carrying documented evidence of their status. In other words everyone must be prepared to present "their papers" or be arrested on suspicion of trespass.
This new definition of criminal trespass is the thin edge of the wedge that permits the authorities to make the "lawful contact" required by the AZ statute. An officer merely has to suspect the person of violating this expanded definition of trespass (physically being in AZ without "papers" whether of legal status or not)in order to make the "lawful contact". This is the investigation of "another violation or crime" that allows the inquiry and demand for "papers". A blue-eyed, blond female of Scandinavian descent born in Phoenix who was not carrying documented evidence of her citizenship and/or legal status would be in violation of this new expanded definition of trespass and thus would be subjected to detention & delivery to ICE for the ultimate determination of legality of her being present within the boundaries of the State of AZ.
The State Representative would say that this wouldn't happen. The only reason it wouldn't happen to the blond perp/ suspect is that she would have been "profiled" as not being a potential offender. Of course, a male Hispanic, waiting at the side of the road for any purpose would be "profiled" as a potential offender of this new, expanded offense of trespass. If this unfortunate Hispanic male was an American citizen who was not carrying "papers"/ documentation proving his legal status then he will be arrested and delivered to ICE while being charged under the AZ Criminal Code with criminal trespass & face the penalties contained therein including fines & payment of his jail costs. He must hire defense counsel & prove that he "maintains authorization from the federal government to remain in the United States". Where is the presumption of innocence, where is the requirement that the prosecution has the burden of proving the offence? The burden shifts to the accused to "prove" his presence in the State of AZ is lawful. If an American born Hispanic male cannot prove his legal status he would be subject to conviction. Shouldn't the prosecution be required to prove that that the person is there without legal status?
Interestingly the AZ law places a positive obligation on law enforcement to apply the new law of trespass. Should the officer try & release the blond that can't produce her "papers" he could himself be subject to prosecution for not detaining her & anyone can initiate the complaint. (Note that the AZ law encourages anonymous reporting of violations.)
Lastly Mr. Adams attempts to justify the actions of the AZ Legislature by drawing attention to the fact that CA, one of the largest critics of the proposed law, may even have similar laws on its books. He cites CA Penal Code s. 834b as support for this proposition. Firstly this section pertains to the obligations of a peace officer in effecting an "arrest". It does not expand the definition of trespass or create any new criminal offenses. Secondly, s. 834b (a) serves as the preamble for the cited law and provides as follows: "Every law enforcement agency in CA shall fully cooperate with the US Immigration & Naturalization Service (sic - now ICE) regarding any person who is arrested if he or she is suspected of being present in the United States in violation of federal immigration laws." Therefore, the person must first be "arrested" - this is a much higher standard than "lawful contact"; and, the agency's requirement is to "cooperate" with federal immigration authorities not co-opt their authority."
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