Taking It To the Courts

Taking It To The Courts by Steve Clemens. May 12, 2009

The immigration system in the U.S. is broken. Partisan political bickering compounds this political hot potato. Maybe the only branch of our tripartite government that can look at this issue dispassionately is the judiciary. It seems both the legislative and executive branches are bombarded by both interest groups and fear-mongering and remain immobilized to doing something.

But do we really want a dispassionate look? Yes and no.

Yes, because in a democracy, one needs a clear analysis of the situation, making sure that the majority doesn’t trample the rights of minorities. Fears, xenophobia, racial and ethnic stereotyping need to be set aside when determining correct public policy.

No, because I also want a passionate look at immigration. There is genuine suffering that presently occurs on both sides. Arizona cattle ranchers on the border with Mexico find their fences cut, cattle being killed outright or poisoned from eating the detritus left behind by migrants traveling through their lands. On the migrant side, families are being torn asunder. People are desperate to feed and provide for their families amidst Mexico’s economy which has been shattered in some sectors (agriculture, manufacturing, …) by globalization pressures. And that desperation drives them north, trying to find ways to survive and thrive. I want compassion – literally “with passion”.

The U.S. is not an island. Our economic and political policies drastically affect the lives of millions around the globe. Some Americans are truly fearful of being overrun by “outsiders” – maybe in similar ways to what our Native American ancestors experienced. By global standards, most of us have more than enough, certainly more than our fair share.

So, how does one bring it to the courts?

One way is through civil disobedience. It becomes a way to protest unjust laws and unjust situations and creates a public crisis by forcing the judicial branch to look at it. Granted, for the most part in U.S. history, the courts have done a pathetic job. We only have to view the “guilty” verdicts of abolitionists, suffragettes, civil rights agitators, and anti-war activists to see the failure of the judiciary in retrospect. But there have been a few victories; some judges find a defendant technically guilty but refuse to sentence them to any penalty.

Witness the recent case of a member of “No More Deaths” who was arrested and charged with “littering” for leaving bottles of water in the desert for migrant workers trying to get a better life for their families. He was found “guilty” but the judge refused to sentence him. In an ideal world, the Judge would refuse to pronounce the guilty verdict and instead fall back on the Universal Declaration of Human Rights that the U.S. has signed in 1948 as a justification for the humanitarian action.

Or remember the Federal Judge in Minneapolis who refused to find guilty demonstrators against the Vietnam War or nuclear weapons. Some prosecutors have chose to dismiss charges, not because they don’t have enough “evidence”, but because it is not in the public interest to criminalize some behavior. It may appear to outsiders that some of these decisions are made for other reasons (cost of a trial, difficulty to prove intent, busy court docket) but I hope it is due to the conscience and political sensibility of some prosecutors. Maybe some prosecutors are sensitive to world opinion and International Law that often gets short shrift in the U.S.

Some courts and some judges have done a better job on death penalty issues than the political process. It has been the courts that have led the way for some initial movement on the rights of GLBT people to marry – and now some legislators are trying to catch up. Maybe the courts can provide an opening for a just and compassionate resolution to our immigrant policy impasse.

My friend and retired trial attorney, Peter Thompson, reminded me that the best vehicle for getting the courts to address the immigration issue is not via civil disobedience where the court is left to only decide guilt or innocence -so conviction or acquittal doesn't really get to the issues, except indirectly. Civil disobedience cases really don't develop the law; civil disobedience can help build public opinion -it is rather through finding compassionate and determined lawyers to take up the thousands of cases of those caught up in this broken system. To get to the social and justice issues a judge needs to have a case before her that raises those issues. The way to reach these issues is through litigation of the deportation or exclusion cases of immigrants. The big problem here is that most lawyers won't take these cases.

Until or unless we can find and fund the lawyers who will, we’re left with artificially creating the crisis for the courts: by filling their dockets with those of us willing to sit or stand in the way, hoping to protect our brother and sister immigrants who are in danger. Sometimes it seems that civil disobedience is all we can do in the interim while we wait for (and create space for) the political process to catch up. I remember Dan Berrigan said after one of his many courageous and insightful protests, “I could not NOT do it”. That’s one reason for my civil disobedience last Wednesday at the ICE/deportation center in Bloomington, MN.