Arizona on verge of increasing jail time for migrants

After a few years out of the limelight, Arizona legislators appear on the verge of reigniting the state’s notorious climate toward migrants. A subtle change to the state’s criminal sentencing statutes promises to substantially increase the amount of time in prison certain migrants face.

The proposal, Senate Bill 1377, targets migrants who are in the country in violation of a small number of federal immigration crimes, most notably Immigration and Nationality Act § 275 and 276, illegal entry and illegal reentry respectively. SB 1377 would limit a sentencing judge’s power to tailor the sentence given to such migrants convicted of a state felony. It would also prohibit judges from ameliorating the consequence of conviction by issuing an alternative disposition like those commonly used throughout the United States. If convicted of a misdemeanor, migrants to whom this amendment applies would be subject to the maximum term of imprisonment and also barred from receiving a non-jail sentence.

In its entirety, the proposed statute provides:

Section 1. Title 13, chapter 7, Arizona Revised Statutes, is amended by adding section 13-717, to read:

13-717. Special sentencing provisions; unlawful presence

1. if a person is convicted of committing any felony offense and the trier of fact determines that the aggravating factor listed in section 13‑701, subsection d, paragraph 21 applies, the court shall sentence the person to imprisonment for not less than the presumptive sentence authorized under this chapter and the person is not eligible for probation, suspension of sentence, community supervision, commutation or release on any basis until the sentence imposed is served.
2. if a person is convicted of committing any misdemeanor offense and the trier of fact determines that the aggravating factor listed in section 13‑701, subsection d, paragraph 21 applies, the court shall sentence the person to imprisonment for the maximum term of imprisonment in jail authorized by this chapter and the person is not eligible for probation, suspension of sentence, commutation, work furlough or release on any basis until the sentence imposed is served.
3. Any time that the person is not in this country is tolled when calculating the statute of limitations prescribed in section 13‑107.

Sec. 2. Short title

This act may be cited as “Grant’s Law”.

Some confusion exists about the proposal’s breadth. The bill’s sponsor, Senator Steve Smith, a Republican from Maricopa whose official biography describes one of his “primary commitments” as “combat[ing] the illegal immigration epidemic,” seems to think that it affects every migrant who has entered the United States without authorization or overstayed a visa. Indeed, in testimony before the Arizona House of Representative’s Military Affairs and Public Safety Committee, Senator Smith explained that it targets those people who “have broken into our country or overstayed [their] welcome” (11:25). He added that he hoped it would deter similar conduct by those contemplating it (11:45).

To me, the bill’s language, however, does not sweep so far. By referencing specific criminal sections of the U.S. Code (all of which are codified as part of the INA), the text actually seems to affect only people who have actually violated those provisions. It affects, in other words, people who have violated one of the five federal immigration crimes explicitly listed in Arizona Statute 3-701(D)(21): unlawfully bringing migrants into the United States, 8 U.S.C. § 1323, INA § 273; unlawfully bringing in and harboring migrants, 8 U.S.C. § 1324, INA § 274; illegal entry, 8 U.S.C. § 1325, INA § 275; illegal reentry, 8 U.S.C. § 1326, INA § 276; assisting certain inadmissible migrants in unlawfully entering the United States, 8 U.S.C. § 1327, INA § 277. It does not, however, affect people who simply overstayed a non-immigrant visa or engaged in some other violation of civil immigration law without more.

Importantly, the bill is silent as to how a judge or, presumably, a jury serving as a trier of fact figures out whether a particular person has violated those provisions. By requiring a judge or jury to “determine that the aggravating factor” listed in Arizona Statute 13-701(D)(21) applies, S.B. 1377 effectively puts the criminal proceeding’s trier of fact in the position of gauging whether a person has violated a federal immigration crime. Does a state court have power to determine if a federal crime has been committed? If so, by what standard? Relatedly, who bears the burden of proof? Perhaps these questions are answered in other areas of Arizona criminal law or procedure. I will leave that to those who are more knowledgeable about the state’s criminal proceedings to determine.

For me, it is enough that, on top of being normatively problematic, S.B. 1377 raises a host of legal issues that must be answered before the state can raise the stakes of violating immigration law. Given Senator Smith’s cavalier attitude toward a criminal justice system that treats everyone equally, Arizona watchers ought to take a close look at S.B. 1377. In response to a question posed by a member of the House committee whether the bill would create a two-tiered system of justice that conflicts with the federal Constitution’s Fourteenth Amendment, Senator Smith responded, “if you are a noncitizen, you are certainly not afforded the same level of justice that citizens are” (8:35). I like to think that the United States is better than that.

Below is footage of testimony before the House Committee on Military Affairs and Public Safety. Thanks to Annie Lai for flagging this proposal.