Protect your constitutional rights: Don’t fall for the Laken Riley Act’s security theater

Last week, the U.S. House passed its first bill, the Laken Riley Act, beginning the new year with a law named for a nursing student killed by a non-citizen who had recently been cited for shoplifting but was not detained.

Non-citizens convicted of crimes like robbery, theft and shoplifting are already subject to mandatory immigration detention under existing laws. This new law would expand mandatory detention to people simply arrested for or charged with such crimes, regardless of whether they actually committed them.

The law thus raises serious due process issues that should concern us all, including the senators who will consider the bill soon.

Already, people can be deported for committing crimes of “moral turpitude,” including theft. Despite some of the rhetoric, this law, if approved by the Senate and signed by the president, would not in any way affect which persons can or cannot be removed from the country.

What the law does is require detention, without bond or even a bond hearing, to decide if a person really poses a public safety risk. That is a dangerous concept. We have a foundational constitutional commitment to due process, expressed in the Fifth and Fourteenth Amendments. All people have a right not to be deprived of life, liberty or property without notice and a fair hearing.

This law could be used to detain people who are arrested but never charged with any crime — for example, where police quickly learn they have arrested the wrong person, or a diligent judge or prosecutor notices an important legal problem before a case is arraigned. That is very common, particularly in low-level cases. Probable cause is then not found and the person is promptly released. Under this law, the potential for mistaken identification, false accusations and racial profiling to result in lengthy detention without any safeguards is deeply troubling.

This law would also apply to detain people who are charged with a crime but not yet convicted. As we all know, people merely charged with a crime in this country are considered innocent until actually proven guilty, beyond a reasonable doubt, in a court of law.

That is not to say that people charged with crimes cannot be jailed while awaiting trial. More than 400,000 people in our jails every day are awaiting trial. At least they get to make an argument, promptly, before a judicial officer and then a judge, that they should not be jailed. Due process guarantees that they have a chance to make the case, at least, that they do not pose a substantial risk to public safety or a risk of flight.

Not only is that an important legal protection, it is important for public safety. Studies show that people are actually more likely to reoffend if they are jailed, lose employment, housing, and family support. That is what one of us found in years of studying the large-scale misdemeanor bail reforms in Harris County, Texas. Making sure that people are only jailed for strong public safety reasons resulted in more liberty and also more safety.

Now, in the immigration system, due process protections have already been substantially weakened. For example, the Supreme Court has upheld time-limited mandatory detention for people convicted of, or who admit committing, certain crimes, including those covered by the Laken Riley Act. But those people had criminal proceedings, in court, to adjudicate their guilt. The Supreme Court has never found that an arrest or charge alone justifies detention, without a right to a hearing, under the Constitution.

With this act, detention will be considered mandatory for people who may never be found guilty in court. A false arrest or an unfounded charge will be enough for no-bond, no-hearing immigration detention — and the documented risks of death, disease, forced labor and family separation that go with it.

This mandatory detention, for minor arrests, would not only raise serious constitutional concerns, it would be extremely costly. Do we really want to pay tens of millions of dollars a year to house people charged with shoplifting in expensive detention facilities?

Adding even more cost, this act would result in people, at great taxpayer expense, being kept in detention for months or even years. Our already overburdened immigration system may take years to process their cases. Meanwhile, it may be quite difficult for local prosecutors to pursue their criminal case if a person is housed in immigration detention. The criminal cases may languish, leaving victims without any closure or restitution and burdening local courts even more.

What does that make of constitutional due process? Due process is always placed under special stress when people demand quick results without fairness. But due process matters to all of us, even if we are not affected by a particular government process.

The government does things that affect everyone’s lives. Whether it is the right to a hearing to contest one’s property taxes, a fine, a driver’s license suspension, a public benefit denial or pretrial detention, what goes around comes around.

Thin, unfair or mandatory punishment schemes, once they are tolerated for one group, have a way of being used against others. That is why the due process clauses of the Constitution are written in general terms: they apply to all people, in the land of the free.

Brandon Garrett is the L. Neil Williams Professor of Law at Duke University School of Law and the faculty director of the Wilson Center for Science and Justice. He is the author of the book, “Defending Due Process: Why Fairness Matters in a Polarized World,” forthcoming in February from Polity Books.

Kate Evans is a clinical professor of law and director of the Immigrant Rights Clinic at Duke Law.

Elana Fogel is an assistant clinical professor and the director of the Criminal Defense Clinic at Duke Law.

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