July 2010

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By Pratheepan Gulasekaram, Assistant Professor, Santa Clara University School of Law. Professor Gulasekaram teaches Constitutional Law, Immigration, and Citizenship.

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As most are aware by now, a federal district court preliminarily enjoined key parts of Arizona's controversial anti-illegal immigrant law, SB 1070, ruling for the federal government in its suit against the State of Arizona. The law's opponents heralded the decision as a carefully crafted one that deals a blow to anti-immigrant forces. Here, I will briefly explain that while I believe the decision stands on firm constitutional ground, and immigrants and immigrant-advocates are justified in celebrating this preliminary outcome, it is not a complete victory.

As an initial matter, I think Judge Bolton's opinion is constitutionally sound. It does not rest on new-fangled legal theories or the acceptance of previously unrecognized suspect classes under the constitution. Instead, the decision analyzes the Arizona law under well-worn principles of federalism. It relies on decades-old Supreme Court precedent like Hines v. Davidowitz and DeCanas v. Bica, both cases addressing state lawmaking directed at non-citizens, with the former striking down an alien registration requirement similar in spirit to parts of the Arizona law. Applying this federalism framework to SB 1070, the court correctly predicted that Arizona's law is highly likely to impermissibly affect citizens and legal residents of the United States even if they are not its target, require the redirection of some federal resources, and create penalties and liabilities for undocumented persons that are not contemplated by federal law.

In addition, from the perspective of someone who teaches this area of law, I fully endorse the court's conclusion that the section of SB 1070 allowing police officers to conduct a warrant-less arrest of a person, when the officer has probable cause to believe that person has committed an offense that makes that him or her removable, is well-beyond the bailiwick of local law enforcement. Such a provision might make sense if determinations of legal status and deportability were a simple matter. However, as Judge Bolton accurately noted, determinations of removability require the careful analysis of several complex and interrelated portions of the immigration code, and are dedicated by federal law to the expertise of immigration judges and federal appellate courts. If such determinations were as lucid as the Arizona law would suggest, immigration professors could save several classes each semester attempting to decipher imprecise terms such as "crimes of moral turpitude" and "aggravated felonies," along with the various exceptions and waiver possibilities that accompany those designations.

The U.S. criminal justice system should take a lesson in improvement from the medical community's model of embracing day-to-day errors as "important opportunities to illuminate hidden flaws," recommends the author of a recent ACS Issue Brief.

"The pattern in criminal justice has been to wait for the catastrophic miscarriage of justice. Everyone then looks for an individual or an agency to blame," writes James M. Doyle, a lawyer with Carney & Bassil and former head of the Public Defender Division of the Massachusetts Committee for Public Counsel Services, a statewide public defender agency. "The organizational accident approach is not only a more accurate way to describe what happened in a wrongful conviction; it opens a more productive avenue to remedial action."

In "From Error Toward Quality: A Federal Role in Support of Criminal Process," Doyle proposes the federal government create a national template for routinely reviewing "helpful errors" and dispense funding to localities for analysis of such errors by "everyone-to-the-table" teams of police, prosecutors, defenders, judges and any other relevant players, such as victim's advocates or probation personnel.

Doyle suggests that a federal "learning-from-error initiative" will help identify problems that undermine compliance with the Sixth Amendment, and move the criminal system away from the counterproductive practice of blaming one person or agency for high-visibility errors.

Doyle's Issue Brief is the second in an ACS series on roles the federal government can play in addressing the persistent crisis in indigent defense. Attorney General Eric Holder, Congress, and many other federal policymakers have identified reform of the indigent defense system as a priority.

In the first Issue Brief, "A Legislative Approach to Indigent Defense Reform," law professor Cara H. Drinan writes that the nation's system for upholding the right to counsel for indigent defendants is woefully lacking and needs a strong response by the federal government.

Doyle's Issue Brief is available here. For further discussion of the Sixth Amendment right to counsel, view the video of ACS 2010 National convention panel discussion, "The Federal Role in Improving Indigent Criminal Defense." Southern Center for Human Rights President and Senior Counsel Stephen B. Bright talked with ACSblog about reforming indigent defense services following his participation in the "Federal Role" panel. His interview is available here.