Why ‘amnesty’ is a misnomer in the immigration debate

Dear Rebecca:

Webster’s Dictionary defines “amnesty” as…

(Wait. Stop. Let’s try that again.)

Ahem. Hey Rebecca, you’ve seen that President Trump has offered a (bad) deal to allow the so-called “Dreamers” a path to citizenship? Here’s how Breitbart took that.

Screen Shot 2018-01-25 at 8.39.57 PM

Notice a theme?

Immigration restrictionists like to say that any path to citizenship for undocumented migrants amounts to “amnesty.” It’s supposed to offend our sense of justice, but that’s precisely why the word doesn’t seem quite right. Why?

It implies that a crime has been committed. Very strictly speaking, one does not have to have committed a crime to receive an amnesty, but colloquially, yeah, I think a lot of people hearing that language would assume that a criminal is getting off without consequence.

For the so-called ‘Dreamers,’ though, that’s not the case.

When we checked with the Florida Conference of Catholic Bishops, Michele M. Taylor, the group’s associate director for communications, pointed to the 2012 Supreme Court case Arizona vs. United States. The majority opinion found that “as a general rule, it is not a crime for a removable alien to remain present in the United States.”

Experts agreed. Unlawful presence is neither a felony nor a misdemeanor, said Ilya Shapiro, a senior fellow in constitutional studies at the libertarian Cato Institute. It is a civil infraction that results in removal and a bar on re-entry for a certain period of time.

That said, it’s also important to distinguish between “unlawful presence” and “unlawful entry,” said Kermit Roosevelt, a University of Pennsylvania law professor. Improper entry by an alien is indeed a misdemeanor, Roosevelt said.

That’s an important distinction, because.

• Even if a Dreamer’s presence in the United States involved a crime, the Dreamer didn’t commit it. Here’s what the common law tradition underlying our legal system says about juvenile “crime”:

At common law, one accused of a crime was treated essentially the same whether he was an infant or an adult. It was presumed that a person under the age of seven could not entertain criminal intent and thus was incapable of committing a crime. Allen v. United States, 150 U.S. 551, 14 S. Ct. 196, 37 L. Ed. 1179 (1893). One between the ages of seven and fourteen was presumed incapable of entertaining criminal intent but such presumption was rebuttable. Id. A person fourteen years of age and older was prima faciecapable of committing crime. Id.

The DACA folks — people brought here has youngsters by their parents — were too young to make their own decisions about whether they crossed the border; their parents did it for them.

A lot hinges here on my interpretation of “amnesty” in this case as meant to convey the understanding of crime unpunished. Technically, you can give “amnesty” for parking tickets, which don’t rise to the level of a crime.

The bottom line is this: Immigration restrictionists believe the sins of parents should be visited upon their children. It’s an ugly notion, one buttressed by the language of “amnesty.” We shouldn’t agree with it. If crossing the border is a wrong act, the right response to it is not to increase the amount of injustice in the world. But that’s what immigration restrictionists seek.

— Joel

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