Napolitano Outsmarts Herself

Homeland Security Secretary Napolitano is in the headlines today for her seemingly lazy understanding of how 9-11 terrorists entered the United States. She heard a story that fit her preconceptions, and closed her mind. The truth is what she believes, not what the facts support. I might use this to launch into a rant about the Klink Administration’s narrative-driven policy, and how that method is inferior to reason-driven policy. Instead, it reminds me of something I wanted to bring up last week.

Righty pundits were quoting Napolitano in a CNN interview as saying, “Illegal immigration is not a crime.” The statement appears self-evidently false, and Napolitano appears a fool. She may be a fool, but a crafty fool. Here’s the transcript:

KING: A lot of Democrats in Congress want to you investigate [Arizona Sheriff Joe Arpaio]. They think he is over the line. He says he is just enforcing the law and the problem is the federal government.

NAPOLITANO: Well, you know, Sheriff Joe, he is being very political in that statement, because he knows that there aren't enough law enforcement officers, courtrooms or jail cells in the world to do what he is saying.

What we have to do is target the real evil-doers in this business, the employers who consistently hire illegal labor, the human traffickers who are exploiting human misery.

And yes, when we find illegal workers, yes, appropriate action, some of which is criminal, most of that is civil, because crossing the border is not a crime per se. It is civil. But anyway, going after those as well.

But the notion that you're going to fill every prosecutor's time, every law enforcement official's time, and that's literally what he's talking about, on immigration, he doesn't answer the other question, which he has been criticized for, by the way, in Maricopa County, because he is not going after murders, armed robberies, other more serious crimes, because he is so focused on this one.

(emphasis mine)

Napolitano is making a distinction between civil law and criminal law:

In the common law, civil law refers to the area of laws that affect the legal status of individuals. Civil law, in this sense, is usually referred to in comparison to criminal law, which is that body of law involving the state against individuals (including incorporated organizations) where the state relies on the power given it by statutory law.

Entering the US without permission is akin to trespass. When someone is found on your land without permission, the legal remedy is not criminal prosecution. You ask them to leave willingly, or have them removed by police. If your land was somehow harmed, you sue for damages. The whole process is not criminal, essentially, because no harm was intended. The trespasser didn’t have a “criminal mind”.

Where I think Napolitano muddles the issue is that US law requires all border crossings be made at established checkpoints. And the law is written such that the burden of proof is on the person attempting entry into the US. An alien must prove he had permission to enter the US, and that he did so at an approved crossing. Failure to prove either element is grounds for deportation. Crossing is not a crime, but also not a legal act, except under very limited circumstances.

I contend that essentially every person who enters the US without permission is aware of what they are doing. It’s not like they bumbled across a line of hedges, or just hopped a fence on the way to somewhere else. They plan their crossing, and intentionally avoid the checkpoints. To knowingly and willingly commit an unauthorized act is criminal. These people are therefore not “illegal aliens”. They are “criminal aliens”.

But this raises another distinction in legal theory. Some unauthorized acts are not considered crimes. The worst acts are crimes labeled as felonies. Lesser crimes are labeled misdemeanors. The least offences are not crimes, but labeled as merely infractions. Adding to the confusion, the least misdemeanors, labeled “petty misdemeanors” are usually considered non-criminal.

Which acts fall into which categories is determined by legislation. In some jurisdictions, for example, driving too fast can be a misdemeanor crime, or just a civil infraction, depending on miles-per-hour over the speed limit.

Congress has legislated that illegal entry into the United States is a misdemeanor. Because the penalty for the misdemeanor can include incarceration, it is considered a criminal misdemeanor. While we might fine both those who commit minor infractions and those who commit serious felonies, we only lock up criminals.

Napolitano is certainly more studied in immigration law than I am. She knows how to dance around the terms and concepts. Her statement that illegal immigration is not necessarily a crime can be defended through legal nuance. There are too many varied particular to make a categorical statement that all crossings are criminal.

Her statement does sound ludicrous to those with a more simple idea of right versus wrong. To the common man, the Secretary sounds like a fool. In a narrative-driven administration, you are what you sound like.