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Guilty until proven innocent

In another 5-4 vote yesterday with strong dissent, the Supreme Court upheld a 1996 law that allows the Immigration and Naturalization Service to arrest and hold any immigrant - even permanent residents - while trying to deport them, if that person has committed "aggravated" crimes or crimes of "moral turpitude." No bail, no hearing to determine if these people are actually flight risks or threats to society, just indefinite detention because they're immigrants. So what are aggravated crimes or "crimes involving moral turpitude" (funly called "CIMT" by the experts)? According to one law firm, it's the Immigration and Naturality Act, and it's stricter than you might imagine. "Aggravated" crimes include everything you might expect (the drug trade, counterfeit passports, sex crimes, murder, arson, firearms or explosives charges, violent crimes, alien smuggling, even burglary). It also includes a few that might seem minor in comparison: theft (that includes shoplifting, I believe), fraud, and intent to defraud for more than $10,000. The "CIMT" offenses include not only violent sex crimes but also "crimes in which intent to steal or defraud is an element (e.g., burglary, embezzlement, stealing cellular air time, etc.), crimes in which bodily harm to another is done or threatened intentionally (e.g., murder, rape, assault with a deadly weapon, etc.) or by recklessness (e.g., vehicular manslaughter, etc.), and most sex crimes (e.g., prostitution, adultery, etc.)." The Washington Post story refers to a guy from South Korea who landed in the US at age 6 (in 1984), and got a green card (making him a permanent resident) two years later. He went bad for a while, as happens to people, and was convicted in 1996 (age 18) of stealing from a toolshed, then again in 1997 of "petty theft with priors," a California construct that makes petty theft worse for you if you've done it before. He got three years in prison, and under California's good-time rules, served two. He was arrested by INS officials upon completing the sentence because they want to deport him, but they had no evidence he was still any kind of threat to anyone, so he appealed. He won in the 9th Circuit and was granted $5000 bail, and is now a 25-year-old business major at San Jose State University. The ruling means the INS can pick him up and keep him in jail for months or years until it decides whether or not to deport him, on absolutely no evidence at all that he's a flight risk. In fact, under the law the Supremes upheld yesterday, he has no right to a bail hearing, so he can't even show a judge that he's a college student and not a flight risk (having completed three years of college while out on bail). Justice David Souter dissented so strongly that he read a summary of his opinion from the bench, saying, "The Court's holding that the Constitution permits the government to lock up a lawful permanent resident of this country when there is concededly no reason to do so forgets over a century of precedent acknowledging the rights of permanent residents, including the basic liberty from physical confinement lying at the heart of due process." He gets no sympathy from today's GOP, which has abandoned all form of legal constitutional protections (except for gun owners, notably) under the current Attorney General. In fact, Ashcroft has repeatedly explained that his view of the Justice Department is no longer punishing guilty people for crimes, but preventing crimes from happening in the first place. The traditional balance of power in the courts has been that if law enforcement tramples on your constitutional rights, the state is prohibited from using any evidence that came from such a violation (such as an illegal search or a coerced confession). Ashcroft, on the other hand, isn't that interested in bringing anyone to trial: if he believes you're about to commit a crime, he wants to arrest you and hold you forever. If you don't go to court, there's no evidence to be thrown out. This is what bothers so many people about the case of Jose Padilla, who's been in Federal custody now for nearly a year without any charges filed and without even being allowed to see a lawyer. As an advocacy Web site points out, the 5th Amendment explicitly says that no person shall be " deprived of life, liberty, or property, without due process of law." He was first arrested on a material witness warrant and therefore allowed to see attorneys, but after one month, President Bush declared this US Citizen to be an "enemy combatant" and transferred him to military custody, where he's not been allowed to see anyone but the military for nine months, and has probably been undergoing intense interrogation the entire time. As far as Ashcroft is concerned, that's the end of it. The federal courts have ruled that he must be allowed to see attorneys, but the Ashcroft Justice Department has so far refused to comply and is appealing the decision. Now, you can argue that immigrants have fewer rights than US citizens, and that's the reason the 5-4 majority upheld the immigration detention law yesterday, but this guy is a US citizen. Souter is right: the government is seeking to lock up people even when baldly admitting it has no reason to do so, just because it wants to. How can this be happening in the US? What failure of civics or education have we had that a huge class of people in this country - including some who lived through World War II - think it's perfectly fine to lock people away indefinitely without ever having to show anyone why? How did a country built on immigration turn into a land that would deport a college student back to Korea, where he hasn't lived since age 6, because he committed petty theft in his teens, and lock him up for years as a young man while deciding? And argue that no court has the right to determine if he shouldn't be held? It's just another part of the dramatic shift in the US away from the founding principle of "innocent until proven guilty." It's the same thing with a California city that's trying to ban anyone on parole from a 20-block area of the city, and if that works, they want to expand it elsewhere. This is not "you can't associate with known felons if you're on parole," or "you can't come near someone who has a court order against you," this is "you've committed a crime and are therefore banned from even visiting here for no other reason." Who came up with this gem? As usual, a deputy district attorney, who tells you not to worry: they'll use "common sense" in enforcing the law. Fortunately for the rest of us, the Constitution explicitly prohibits that - it's called "equal protection." You can't write unconstitutional laws and argue that they're OK because you only enforce them against the bad guys, because it's not OK for two different people to face different legal ramifications for the same act, barring a narrowly-tailored interest. The government can bar ex-felons from owning guns, but not from, for example, eating or traveling. Under this proposed ordinance, police officers would be the sole arbiters of whether or not a given parolee was "allowed" into a neighborhood that might be where his family lives. In fact, that's an explicit reason they want the ordinance, according to the Los Angeles Times. The town of Lancaster grew by winning a state prison many years ago, and now that the families of inmates live there to be closer to their incarcerated loved ones, the city wants them out:
The families of inmates often move here to be near their loved ones, and they bring their problems from "down below." [...] Herlinda Humphreys was more enthusiastic about the proposed ban. She said she has watched her Gadsden Avenue neighborhood go downhill for 26 years, and she would be happy to keep out the parolees. "Discriminating against people who got in trouble?" she asked. "Well, they should have thought about that before they got in trouble in the first place."
Someone should remind Ms. Humphreys that the Constitution is supposed to prohibit adding on punishments later for something you did years ago. It's called an "ex post facto law," and it's expressly forbidden. How would you like to plead guilty to a speeding ticket just to find out several months later that the city council decided that anyone who ever sped on that particular street should be permanently prohibited from driving? Had you known that at the time, you might not have pled guilty to the infraction. People who support this think it won't ever happen to them, and when it does, they decry the "lack of common sense" in enforcing these laws against them instead of against the "bad guys." Wake up, people: the Constitution is all that prohibits the government from considering you all "bad guys," and there are plenty of people who want to eliminate that. The chief counsel for one of the groups that supported yesterday's Supreme Court decision that allows denying bail to immigrants pending deportation even with no reason to do so put it this way to the Post:
We've just locked up a lot of convicted criminals who won't be on the streets committing more crimes.
See? They're going to commit more crimes unless you lock them up! Life imprisonment for everything! No second chances! If you have a moment of indiscretion and joyride in a car, or shoplift a video game, or even pick up a hooker or a hustler, you're a danger to society and must spend years in detention unless a judge rules otherwise. We don't need evidence: if you did something wrong before, you're going to do it again. Once guilty, always guilty. The folks behind these initiatives are attempting to rapidly change the US into a land where any non-white-collar criminal conviction permanently disqualifies you from participating in most of society. They're actively trying to wipe away the founding principle that a past bad act is not evidence you will do something wrong in the future, or did something else wrong now. In fact, if this Korean guy were arrested today for shoplifting, the law would prohibit a trial jury from knowing that he had been arrested in the past because it hopelessly prejudices them against him. The only way it gets into court is if he enters evidence about his good character, at which point the prosecution can rebut with evidence of bad character, like past convictions. If he doesn't use that defense and instead makes the prosecution prove he committed a crime, the jury never hears about past mistakes. That's the way most of us think of America -- a land where you're punished for what you've done wrong once it's been proven, where the laws are fair, and where you get a new chance once you've "paid your debt to society." These folks are trying to create a land where the debt for non-white-collar felonies, or those of "moral turpitude," can never be repaid. And the scope of this intrusion is truly staggering. The much-reported comments of Sen. Rick Santorum (R-PA) last week show that he believes the government has the right to outlaw any kind of sexual relationship other than vaginal intercourse between married heterosexual couples. Any other kind of sex between any other couple, Santorum says, should be illegal as "harmful to the family," meaning the family of his definition. Gay couples, even with children, can never be "families" in Santorum's world, nor can heterosexual couples who live together and raise children. Even married people that enjoy a wide variety of sexuality between the two of them could be arrested in Santorum's world, and they're working hard to make it your world, too. Santorum is the #3 Republican in the US Senate, and the President has explicitly supported him in his comments as "inclusive." Other GOP politicians have been ordered not to talk about his comments at all. Combine all these things and you have a truly oppressive situation. A child emigrates to the US and becomes a permanent resident, and realizes in his teens that he's gay. Afraid of coming out of the closet for all the normal reasons (plus perhaps more pertaining to his parents' culture), he fumbles around clumsily with sex and gets arrested for being in the wrong bar or picking someone up in a public place, even if he and the other guy are both over 18. In Santorum's America, that's illegal. In Ashcroft's America, that's enough reason to lock him up because he might commit more homosexuality, and yesterday's Supreme Court ruling affirms that he could be locked up for years pending deportation with no more evidence other than that he was gay in public once. (According to Goldstein-Howe, this can't happen right now, because the current INA only allows deportation for two or more convictions involving "moral turpitude" if they resulted in jail sentences of more than a year, but it's still disturbingly close - how much jail time do you think Santorum wants for being gay?) You may not think these things matter much individually, but add them up and you have a country where prosecutors decide who is innocent and who is guilty; juries and judges aren't involved, appeals are ruled out, and your right to defend yourself is all but moot if you can be held in jail for months or years before you even get a chance. If Roe v. Wade gets overturned, all this applies to women who have abortions, too, and they're still using the power of the state against those womeny now. Yesterday, the Supreme Court refused to overturn a South Carolina law that allows cataloging the medical records of women with no guarantee of privacy - but only if those women had abortions. America should not be a nation where you can be held in jail indefinitely, without presentation of evidence, or see your medical records made public, or have your family declared "criminal," just because the people in charge don't like you. If you agree, remember this when you vote.

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