In 1996, Congress passed, and President Clinton signed, the Anti-Terrorism and Effective Death Penalty Act which, among other dubious provisions, requires the government to deport all non-citizens who are found guilty of committing certain crimes.
Since then, the Immigration and Naturalization Service (now part of the Department of Homeland Security) has hunted down thousands of law-abiding immigrants and kicked them out of the country. In some cases, they were expelled because of youthful indiscretions that landed them in court, where an overworked public defender advised them that their best bet was to “cop a plea,” i.e., plead guilty in exchange for supervision or probation rather than jail time. Now this is coming back to haunt them, no matter how trouble-free their lives have been since.
Immigrant rights advocates and civil liberties attorneys have been trying to get federal judges to rule on the constitutionality of various aspects of the law. For long-term immigrants, they have asked that bail be allowed until the case is decided. This argument appears to rest on firm constitutional grounds, covered by the Bill of Rights.
But recently, the U.S. Supreme Court ruled 5-4 that the federal government is within its rights to deny bail to non-citizens who are awaiting deportation because of having been convicted of a crime.
The Court ruled in the case of Kim Hyung Joon, a Korean immigrant. He was brought to the U.S as a six-year-old in 1984 and became a legal permanent resident two years later. In 1996, when he was 18, he was convicted of trespassing, and a year later was convicted of petty theft and sentenced to jail. He was arrested by the feds the day after finishing his sentence and was denied bail. In 1990 Kim’s attorneys successfully presented a habeas corpus petition arguing that, since Kim had been a U.S. resident since childhood, he was not a flight risk and, therefore, denial of bail was unconstitutional.
The case was appealed all the way to the Supreme Court, which has now ruled against Kim and against the Bill of Rights.
The usual gang of five (Rehnquist, O’Connor, Thomas, Kennedy and Scalia) ruled against Kim, arguing that non-citizens do not necessarily have the same constitutional rights on this question that citizens do. This is another example of amending the Constitution by Supreme Court decree.
Even a fleeting glance at the Bill of Rights will show that the issue of citizenship versus non-citizenship is not mentioned anywhere. In each amendment, the Bill of Rights states what the government may not do (for example ask for “excessive bail”) or what people – not citizens – possess in the way of rights. The gang of five apparently have ESP and can see things in the Constitution that nobody else can see, as the four liberal justices (Breyer, Ginsburg, Souter and Stevens) pointed out in their dissent.
This decision may cause untold suffering for thousands of immigrants. If the government really goes to town with this, it will have to build new prison camps to hold all the people awaiting a deportation decision who will be denied bail. And all these people will lose their jobs immediately, leaving their families, including children born in the U.S., destitute. It is a problem for all of us, because there is no other court to which you can appeal a Supreme Court decision, and the right-wing majority now has the idea that it can legislate as well as judge, to the detriment of civil liberties and ordinary working people.
We have to find a way of explaining what is wrong with this picture to the American people.
Emile Schepers is an activist in Chicago. He can be reached at firstname.lastname@example.org