Tuesday, June 19, 2007

Feeding the beast

A while back I was griping about how tedious — albeit necessary — it was to keep banging on about the villainy of the Bush-McCain-Kennedy Axis of Weevils and their treasonous "comprehensive immigration reform" bill. Part of the tedium (Teddy-um?) of reading and writing about it, though, is in the concentration on the myriad details. Let's give you and me a break and step back to put this sorry business into the frame of political philosophy.

Everyone of every persuasion agrees, in principle, that a functional society must be supported by a structure of law. That law makes it possible for people to go about their lives knowing (a) what they must do and (b) what they must not do. (In any society that can reasonably be called "free," both categories should be carefully considered and limited, leaving a large degree of conduct in the hands of the individual, neither coerced nor prohibited.) Without such legal boundaries, every act becomes a roll of the dice, and a person lives in fear that those who are stronger or in authority can punish him at will. That's why the U.S. Constitution includes a clause prohibiting ex post facto laws (making something illegal retroactively).

The proposed Bush-McCain-Kennedy abomination is another form of ex post facto lawmaking. The only difference is that instead of making something illegal after the fact, it would make legal something that wasn't at the time it was done. That is to say it would undercut the whole basis of law.

Law is effective in proportion to how convincing it is that it will be carried out. Some legal scholars are worried by the fact that the overwhelming majority of criminal indictments are nowadays settled not by jury trial but by plea bargains, because defendants (in many instances) lack the resources to go to trial with competent counsel and prosecutors lack the time and budget to try anything except the most exceptional or notorious cases. The concern is that law becomes no longer a matter of determining innocence or guilt, but of cutting a deal.

Experts in criminal psychology often decry the long period between the commission of a crime and the punishment. It is not only, in Gladstone's words, that "justice delayed is justice denied," but that in the minds of the perpetrator, his relatives and associates, the crime and the punishment are no longer emotionally associated. The law is not seen as being enforced; the eventual sentence — carried out maybe years later — seems arbitrary or vengeful. Shocking crimes often cause people to call for tougher sentences, but critics of the idea insist that it isn't the degree of the punishment that makes it work as a deterrent, but its swiftness and inability to be evaded.

Of course, the more serious the crime and its penalty, the more deliberate the legal process needs to be. Justice and humanity dictate that if someone is indicted for a crime in which conviction could result in capital punishment or lifetime imprisonment, for instance, the system should bend over backward to give the defendant every reasonable means to exculpate himself, even tolerating delays that observers may find frustrating.

(The American judicial system has not always followed its proclaimed ideals. Little more than a year followed the conviction of Bruno Hauptmann for the kidnapping and murder of the Lindbergh baby, until he was electrocuted. That interval was hardly time for the emotionalism to recede and for a serious appeal. In the years since, skeptics have argued that he was in fact innocent. I haven't studied the case enough to have an opinion; anyway, the trial itself was at best dubious and at worst a deliberate stitch-up.)

But illegal immigration is hardly in the same category. No one is going to be executed for it; realistically, no one will languish in prison for a first offence of illegal entry. The overwhelming majority of illegals, should the government ever adopt the bizarre concept of enforcing its own laws defending our borders, will simply be returned to the country whence they originated and of which they are citizens. Not exactly a medieval punishment.

But this is exactly the kind of law that should be prosecuted and carried out in a way that allows no long-drawn-out delays. One hearing with all the normal safeguards, including the right to legal counsel; if it goes against you, you're on the next bus or plane to Sonora or Cairo, and if you show your face again in these states you'll be spending time in a special resort with bars on the windows, where the service, the ambience, and the cuisine are all well below par.

If such a policy were adopted, it would be remarkable how quickly the "insoluble" problem of illegal immigration would go away.

The alternative — which, despite all the huffing and puffing and misdirection and hair splitting by its advocates, is amnesty for illegals — will be a further dilution of justice under law. When criminal behavior by millions is justified and rewarded, not only immigrants and would-be immigrants, but everyone becomes (quite rightly) more cynical. The law is further perceived not as part of the kit that makes liberty possible, but as a system to be gamed. That attitude is common enough already. Let's not feed the beast with a disastrous amnesty.

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