The Word May Be Toxic, but Amnesty Is Everywhere

Originally published by NY Times

The biggest taboo in the immigration debate is the idea of an “amnesty.” Immigration opponents routinely paint amnesties for undocumented immigrants in the United States as catastrophic blows to the rule of law.

The implication is that the only proper thing to do is enforce laws uniformly, all the time, without exceptions — and that an immigration amnesty would thus be a threat to truth, justice and the American way.

But there’s a problem with that theory: Amnesties, though not always labeled as such, are central to how the nation’s legal system functions.

The ways that laws are not enforced, legal experts say, can be as vital to the legal system’s effectiveness as enforcing them.

Amnesties all the way down

Take criminal law, for instance. One might imagine that this is an area where uniform enforcement is particularly important: Society has an interest in preserving public safety and seeing justice done. That is why criminal cases are brought on behalf of the state.

But in fact, statutes of limitations mean that most crimes can’t be prosecuted at all after a certain amount of time has passed, usually no more than a few years. The principle is so strong that only a small number of very serious crimes can be prosecuted indefinitely.

The same is true of civil lawsuits. Plaintiffs can sue only within a set window of time. After that, even if they have suffered serious harm, they are out of luck.

Taxes? The Internal Revenue Service currently offers an amnesty programfor people who’ve stashed money overseas. If they come clean and pay, they avoid some or all penalties.

Even property law has a version of this, found in common-law rules saying that if someone has been using land a certain way for decades, that person is granted the legal right to continue — even if someone else actually owns the property in question.

And those are just some of the official limits in laws and court opinions. There are also the countless little everyday amnesties when officials exercise their discretion: the prosecutor who declines to pursue a case or drops certain charges as part of a plea bargain, the police officer who doesn’t write a ticket.

In other words, if you define amnesty broadly, as a rule or discretionary decision that exempts certain people from the legal consequences of their wrongdoing, then the American legal system is amnesties all the way down.

Serving the public by not enforcing the law

Those rules all share one unifying principle: that sometimes the public interest is best served by not enforcing the law. That even if a person is culpable for a serious offense, sometimes we gain more, as a society, by not holding the person legally responsible.

Tony O’Rourke, a professor at the University at Buffalo School of Law currently serving as a fellow with the Federal Defenders Service of New York, called criminal statutes of limitations an important part of due process protections.

“Prosecutions, if they occur too far in time from when the offense occurs, no longer vindicate the goals of punishment,” Mr. O’Rourke said, except in the case of some especially serious offenses. Statutes of limitations are a way to protect both the public and defendants against government overreach.

“It is absolutely a limitation on the power of the state, in the same way that the Bill of Rights is a limitation on the power of the state, and the due process clause is a limitation on the power of the state,” he said.

James Forman, a professor at Yale Law School, says that because prosecutors act on behalf of society and its citizens, “part of the message that prosecutors are sending when they decide not to prosecute is that we, as a society, don’t want someone to suffer the stigma of a criminal conviction for this action.” That element of discretion and forgiveness can bolster the legitimacy of the system.

There are gains in efficiency as well, said Miriam Baer, a professor at Brooklyn Law School and a former federal prosecutor. “It’s not a one-way street,” she said. “If drafted correctly, the government gets something, too.”

Tax amnesties, for instance, increase the revenue that is collected. And the government then doesn’t have to investigate and prosecute the tax crimes.

There can be downsides to such amnesty programs, Ms. Baer cautioned. If not set up carefully, they can encourage people to break the law in the hope that they will eventually be forgiven rather than punished.

But that can often be avoided through careful drafting. And ultimately, she said, amnesties are common because the gains in productivity and efficiency are worth that risk.

Why is immigration different?

Immigration law, by comparison, is a bit of an outlier. There is no set period of time after which an undocumented immigrant is automatically safe from deportation.

To be clear, the unlawful presence of an undocumented immigrant is generally not a crime, nor is being in the country without papers. So the immigration and criminal systems are not an apples-to-apples comparison.

But at the same time, courts recognize that deportation is similar to criminal punishment in terms of its severity. That is why criminal lawyers are legally required to inform their clients about the immigration consequences of guilty pleas, Mr. O’Rourke said, in order to provide constitutionally adequate counsel.

Yet immigration offenses are far less serious than crimes, like homicides, that don’t have statutes of limitation, Mr. Forman said.

“Certainly, offenses on par to being in the country illegally, they tend to have one, two, three-year statutes of limitations,” he said.

Nor does the immigration system offer a realistic equivalent of property law’s common-law provisions that protect the status quo after years of peaceful use: Decades-long records of law-abiding life in the United States — particularly for those who arrived after 1972 — do not give undocumented immigrants citizenship.

And although there have been temporary immigration amnesties in the past, they have been rare and unpredictable. And today, in contrast with, say, the tax system, there is no large-scale amnesty program available.

The most recent large-scale amnesty was under President Reagan, whoseimmigration reforms granted legal status to nearly three million people in 1986.

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But that amnesty came with an enforcement crackdown stopping the flow of temporary workers across the southern border. Researchers have found that caused many to put down roots in the United States instead of returning seasonally to Mexico and Central America. Since then, the United States has had a large population of undocumented immigrants who live, work and have families in the United States, but who have little hope of achieving legal status.

A narrower program, the LIFE act, offered legal status to some undocumented immigrants in the 1990s if they had family members who were United States citizens and could petition on their behalf. But it ended in 2001.

A need for finality

That means that there is effectively only one imperfect release valve for the immigration system: the discretion of the people responsible for enforcement.

The president and Department of Homeland Security can issue guidelines saying that certain groups of people, such as those without criminal records, should not be deported.

The Deferred Action for Childhood Arrivals program, commonly known as DACA, was essentially a form of structured prosecutorial discretion ordered by the president.

But that kind of discretion offers only temporary relief from deportation, not the finality of a statute of limitations or other similar relief.

That difference was thrown into sharp relief last month, when President Trump ended the DACA program, leaving recipients fearful that they will now be subject to deportation.