Saturday, May 29, 2010

Perhaps we should judge SB1070 by what it *doesn't* contain

Much of the furor over the passage of SB1070 (and its modifier, HB2162) has been rooted in fears that the new law creates a legal cover for ethnic profiling and discrimination on the part of Arizona officialdom.

Defenders of the measure try to deflect such concerns by citing the line in SB1070 that reads -

A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE MAY NOT SOLELY 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.
Sounds good, doesn't it?

That clause *does* sound good, until you compare it to the other clauses in the measure, the ones that have caused so much angst across the country and across the globe.

- There are the commandments (explanation of the use of the word "shall" by David Safier at Blog for AZ here) for all police officers and other government officials, no matter their level, to enforce immigration laws and to verify the immigration status of any member of the public with whom they have contact, followed by the section that allows any resident of AZ to sue if he or she doesn't think that an official/political subdivision is enthusiastic enough in toeing the nativist line -
A PERSON WHO IS A LEGAL RESIDENT OF THIS STATE MAY BRING AN ACTION IN SUPERIOR COURT TO CHALLENGE ANY OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE THAT ADOPTS OR IMPLEMENTS A POLICY OR PRACTICE THAT LIMITS OR RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT PERMITTED BY FEDERAL LAW.

There are civil fines created to serve as punishments for entitities, with the monies collected and reserved for anti-immigrant activities by the Department of Public Safety.

- There are also a myriad of felony and misdemeanor violations created for various acts and missteps by immigrants (failure to carry the proper paperwork at all times, roadside solicitation of unemployment, etc.) and anyone who attempts to aid one in any way (even taking an injured undocumented immigrant to the hospital is a crime), each of which comes with its own punishments.

So what does the measure *not* have?


Any sort of penalties for the violation of the "no profiling" clause, or for falsely arresting someone for a violation, or incorrectly deporting someone, or...


Why do I not think that this particular omission was an accident?

2 comments:

Tucson Tales said...

Good post, Craig, but one correction is necessary. The portion of SB1070 you cite was changed when HB2162 was passed and signed. The word "solely" was removed, so the passage reads "may not consider race, color or national origin."

The problem still exists, however. The end of the sentence says these attributes can still be considered if it's in keeping with the U.S. or Arizona constitutions, and apparently, court cases have determined that a certain amount of profiling is acceptable in some instances. And this would certainly be one of those instances.

cpmaz said...

You are correct about the change to the text regarding the word "solely", but that doesn't change the point of the post - the writers of the measure made sure to impose penalties for the activities that they disapprove of, while not penalizing activities of which they tacitly approve.