Simple Non-Partisan Modification to SB1070

Preamble

2010-05-30T20:01:00.001-07:00

I have many life experiences which may lend some additional perspective to the matter of how appearance can very much factor, usually unintentionally, into matters like Arizona's SB1070 immigration law. While it is understandably human nature to stereotype, that is all the more reason to enact our laws in such a way that protects everyone from stereotyping. I realize some may argue one or more of the following: (a) Arizona was forced to act because the federal government has failed to do its job, (b) immigration policy and enforcement are solely federal issues, and (c) there should be some kind of amnesty and/or guest worker program. For now, I am going to side-step these very important issues. Focusing on SB1070 alone, I invite you to reflect on its wording on page 1, Section 2, subsections A and B, and I hope you may be moved to join me and support simple, but important non-partisan modifications which will strengthen the existing law, if it is upheld, and treat everyone of all races equally. Given that many other states are considering copying the Arizona law verbatim, it is important to get it right. Even if you object to SB1070 based on constitutional or moral grounds, I encourage you to support at the least the first and central proposed modification to guarantee equal protection under the law for people of all races.

Prabhu Solution

2010-05-30T20:00:00.002-07:00

Dear Governor Brewer:

Illegal immigration from Mexico is a significant issue. The federal government and Arizona have been unsuccessful to-date in securing the border or preventing businesses and individuals from employing undocumented workers. I read SB1070 (as amended by HB2162: http://www.azleg.gov/alispdfs/council/SB1070-HB2162.PDF) and I agree with several of the good intentions behind the law. However, through the combination of Section 2 (11-1051), subsection A and the exception clause in Section 2 (11-1051), subsection B in conjunction with the last sentence of the Opinion of the Court in UNITED STATES v. BRIGNONI-PONCE, 422 U.S. 873 (1975) - see below for relevant excerpts - the law is still worded in a way that allows race, ancestry, native tongue, or cultural customs (e.g. looking or not looking at people in the eye) to be considered as factors in establishing reasonable suspicion to question if someone is an undocumented non-citizen. For more background including legal precedents, please read page 4 of Arizona Senate Bill 1070: A Preliminary Report co-authored by Professor Jack Chin at the University of Arizona.

May I ask you to consider the important yet simple modifications outlined below to the existing law? You can strengthen the law while treating people, most of whom are U.S. citizens, of all races equally. This is morally consistent with the Golden Rule: "Do to others whatever you would have them do to you. This is the law." You can set a great example for other states to follow and in one fell swoop, you can put all the brouhaha surrounding SB1070 to rest.

Amend the law to provide explicitly that race cannot be used as a criterion for a lawful stop, detention, or arrest, except officers may rely on race and ethnicity in a specific suspect description. Explicitly state race, color, national origin, native tongue, or cultural customs are not to be considered as factors in establishing reasonable suspicion of undocumented status; and remove the clause “except to the extent permitted by the United States or Arizona Constitution” when stating that race may not be considered as a factor. This is consistent with Department of Justice recommendations http://www.justice.gov/crt/split/documents/guidance_on_race.php, section I, subsection A. Explicitly state that evidence of drug trafficking or human smuggling can contribute to reasonable suspicion.
Require peace officers to ask everyone during a lawful stop: (a) are they a U.S. citizen? If no, (b) how did they enter the United States? The answers to these questions can provide reasonable suspicion without any explicit or unintended consideration of race or ancestry.
Police can require proof of immigration status if someone is arrested. However for lawful stops, while they may ask the questions in item 2 above, a person is not required to answer them or to admit they are undocumented. Therefore, please petition the federal government to give states the authority to require proof of immigration status during any lawful stop. Everyone is asked at border crossings or when flying in from overseas. Everyone should be asked before starting a job. How different is checking immigration status than checking for outstanding warrants during a lawful traffic stop?

Selected excerpts from SB1070 and a Supreme Court decision:

Section 2 (11-1051), subsection A:

NO OFFICIAL ... OF THIS STATE MAY LIMIT OR RESTRICT THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT PERMITTED BY FEDERAL LAW.

Section 2 (11-1051), subsection B:

A LAW ENFORCEMENT OFFICIAL 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.

Last sentence of the Opinion of the Court in UNITED STATES v. BRIGNONI-PONCE, 422 U.S. 873 (1975) http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=422&invol=873

The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens.

* SB1070 explicitly stated that race may not be the sole factor in determining reasonable suspicion of undocumented immigration status. However, it didn't prohibit race as a factor. While HB2162 amended SB1070 after less than one week to strike out the word solely, as explained above, the law continues to allow race to be considered as a factor. I'm arguing to unambiguously correct this.

What You Can Do

2010-05-30T20:00:00.001-07:00

Educate yourself. For example, read at least pages 2-6 of Arizona Senate Bill 1070: A Preliminary Report co-authored by Professor Jack Chin at the University of Arizona. It also includes the full text of SB1070 as amended by HB2162. You may also wish to read my original letter: http://prabhu-solution.blogspot.com/p/my-letter-to-governor-brewer.html
Reflect upon and discuss the issue with your family and friends.
Write a letter to Arizona Governor Brewer. Written letters do have an impact! You can customize and print http://sites.google.com/site/sb1070solution/file-cabinet/SampleLetter2GovernorBrewer.doc e.g. if you believe immigration policy is restricted to the federal government, you can only support the first of the three proposed modifications. (I also have a PDF version that you can print and add anything you wish by hand.)
Write a letter to your federal and state officials or candidates asking for the government to take a more active role in immigration reform, securing our borders, preventing businesses and individuals from hiring undocumented non-citizens, and in modifying the wording of existing laws so that people of all races are treated in the same way.
Take time to give me feedback, whether you agree or disagree, and why. Dialogue is good.

Personal Experience

2010-05-30T07:00:00.000-07:00

I can say from first hand experience that well meaning individuals have rather poor abilities in predicting whether someone is a U.S. citizen or not. Over the years, so many times it’s been assumed I am from India or I've been asked where am I from (as in what country) vs. white friends, some even born in Europe, who have not been asked. I was born in the U.S. I received a Princeton bachelor’s degree and double-major in electrical engineering and the Woodrow Wilson School of Public and International affairs and a Stanford master’s degree in electrical engineering. My family has spoken English as its first language for generations. I have no accent, am an Eagle Scout, am athletic, pay my federal and state taxes, tithe to my church and community, volunteer as a Eucharistic minister at Stanford Hospital, look at people right in the eye, and otherwise am as "all-American" as the next person, not that any of these qualities define an American citizen. A logical hypothesis might be that I'm asked because my skin color isn't white. At work, I have witnessed, once as the employee and once as a supervisor, where whether a person was white or not directly influenced whether they were asked if they needed or were inferred to need an export license – something required only for foreign nationals of certain countries. I took corrective action, but as you can see, even trained managers, erroneously relied on physical appearance or race.

In case it's not clear, I am not particularly worried about how SB1070 will affect me, but I believe my experiences are illustrative of the unconscious bias, which is as harmful as intended bias, that Hispanics may face if Mexican appearance, language, or customs are allowed as factors in determining reasonable suspicion. I believe it's important to do the right thing even if you or I, based on where we live or our ancestry, are unlikely to be impacted.

Acknowledgments

2010-05-30T06:58:00.000-07:00

My wife and best friend, Cathy.
My best friend from college and best man, D.J. Manson (a lawyer by profession).
A great friend, mentor, and one of the pastors who married Cathy and me, Dave Smith, now the lead navigator of Theodyssey. Dave is the one who nicknamed my proposal the "Prabhu Solution" and encouraged me to take this online.
Professor Gabriel "Jack" Chin of the University of Arizona Rogers College of Law who has taken the time to answer my questions and educate me on the legal intricacies of SB1070. I highly encourage you to read at least pages 2-6 of a paper he co-authored: Arizona Senate Bill 1070: A Preliminary Report. It also includes the full text of SB1070 as amended by HB2162.
All of you who took the time to share your thoughts and concerns regarding illegal immigration and enacting fair laws. You have helped educate me and form my opinions.
All of you taking the time to read this website.