There are several dreadful liberal arguments being circulated in response to the killing of Kathryn Steinle by the unauthorized Mexican immigrant Francisco Sanchez. Hector Villagra, in the L.A. Times, said that while the killing was tragic, to deport Sanchez would have required violating the Fourth Amendment. Jose Vargas said on FOX News that ICE should have issued a warrant for Sanchez’s arrest.
It is understandable that liberals are grasping for an argument in the wake of Steinle’s killing. The murder puts them in a very uncomfortable spot. The conservative argument is logically strong: if cities like San Francisco promise safe harbor to immigrants regardless of their legal status, then when someone is killed by an immigrant who would otherwise have been deported but for the safe harbor, the death is a direct consequence of the liberal policy.
The Villagra response to this is that it was the Constitution, rather than the policy, that led to the death. The Vargas response is that it was ICE, rather than the policy, that led to the death. All of this is an attempt to concede the point that Sanchez should have been deported, while exonerating San Francisco’s sanctuary city policy from any involvement in Steinle’s death. They are attempts to disprove the claim that were it not for the existence of the policy, Steinle would be alive.
I think these arguments are a mistake, for a couple of reasons. First, if we adopt the Vargas approach, we admit a breakdown of procedure. The only difference is that conservatives should be blaming the Obama administration for ICE’s failure, rather than San Francisco. So Vargas implicitly justifies the conservatives’ favored deportation regime, he just asks them to turn their fire on the federal rather than city government. The Villagra approach concedes slightly less to conservatives. It, too, admits that Sanchez was an undesirable who ought to have been deported, but suggests that in order to do so, we would have had to eviscerate constitutional protections. The problem with this approach is that the constitutional protections Villagra argues for are not ones conservatives believe in to begin with. Villagra is a representative of the ACLU, who believe in a robust conception of the application of constitutional rights to unauthorized immigrants. A constitutional originalist would be completely unpersuaded. Villagra’s attempt is a sleight-of-hand really; an attempt to defend a liberal policy ideal by appeal to a liberal constitutional ideal. “You might not like that it was impossible to deport him, but the fact is that under a liberal interpretation of the constitution, his rights got in the way.” To which we can anticipate the conservative response: “Well, seems a pretty good reason for not adopting a liberal understanding of the constitution, then…”
I am always wary of arguments that appeal to law, since it is very easy to reply in response that the law ought to change. Law in itself has no inherent moral worth. If I say “Well, but proper procedures were followed,” I am going to end up boxed into a corner as long as you’re skeptical enough of authority to say “Well, proper procedures are abominable, then!” One can see this already in the conservative response to the issue. In reply to the liberal suggestion that nothing was done wrong here, right-wingers like Bill O’Reilly have called for new laws that would put people like Sanchez in prison for five years for re-entering the country illegally.
I think the real argument here is one liberals will be very uncomfortable to make, because it forces them to admit things they do not want to admit. Liberals want to defend San Francisco’s sanctuary city policy against the charge that, under it, crimes will be committed by illegal immigrants that would not otherwise have been committed. But this is indisputably true. Allowing more unauthorized immigrants to stay will likely mean a greater absolute number of crimes, because immigrants are people, and people commit crimes. It may not lead to an increase in the crime rate (in fact, it might lower it, if unauthorized immigrants commit crimes in lower numbers than citizens). But if, say, we add 500,000 new people to our city, we will almost certainly have a larger number of crimes, because we simply have more people. And those additional crimes will be the direct result of the addition of those new people. That is to say: With a sanctuary city policy in place, individual crimes will occur in San Francisco that would not have occurred in the absence of a sanctuary city policy.
But there’s something huge missing from this picture. Liberals and conservatives alike believe that “criminal” immigrants should not be allowed to stay in the country. If we are sympathetic to any immigrants at all, it is the hardworking DREAM-er types who are upstanding taxpayers. As Vargas says, “this man does not represent all … 12 million undocumented immigrants like me.” Thus, we can all agree that violent felons should be deported.
I don’t think that’s as defensible a proposition as it seems, though. Because when we argue that those with a propensity to commit crimes should be deported, all we are really saying is that we wish the victims of those crimes had been Mexican instead. If we say that Francisco Sanchez was a violent killer, and that because of this he should have been kept out of the country, we might be saving Kathryn Steinle’s life specifically, but we’re also wishing some unfortunate woman in Mexico had taken her place. Thus, I believe that both the liberal and conservative arguments, which assume that criminals ought to be deported, are premised on racism. They are premised on the idea that is is more okay for a Mexican to be victimized by a criminal than for an American to, if the criminal is Mexican. The idea is that we want to shift this violence back to Mexico, where it “belongs.” But there is no reason it belongs there more than it belongs here. It’s just that we don’t like it, so we want to get rid of it. It’s purely selfish, purely a belief in national superiority of moral desert.
A lot of times these discussions are affected by a very powerful emotional component, and that is especially true in Steinle’s case. Steinle’s family have been going on the media denouncing liberal immigration policies in the wake of their daughter’s death, and it is very difficult to disagree with them. After all, nobody can tell the family of someone who has just been killed that she ought to have died, that she was a necessary statistic. Any defenders of sanctuary city policies can be told: “Try saying that to Kathryn Steinle’s family.” And hardly any of them could say that to Steinle’s family, not without extreme discomfort.
But conservatives who say “Try saying that to Steinle’s family” should think of this: there is another family out there, a family whose daughter is alive today because Sanchez killed someone in America rather than in Mexico. Try telling that family that you wish it had been their daughter, that you think their lives are less valuable. It would be equally hard, and the only reason the sanctimony is flowing in one direction is that we don’t know who Sanchez’s hypothetical Mexican victim would have been.
Of course, you could suggest somehow that had Sanchez been deported, he wouldn’t have been a killer, but I think this is unlikely, If we think someone is a murder-waiting-to-happen, it hardly seems likely that whether they’ll harm someone depends on whether they are in San Francisco or Juarez. The whole premise of the argument here appears to be that these are undesirable and harmful people.
The argument that Bill O’Reilly and others might proffer here returns to their proposed law: “Well, Mr. Robinson,” says Mr. O’Reilly, “I don’t want Mexicans to be killed either. That’s why I think we should have locked him up rather than deported him. Put him in prison where he can’t harm anyone!” But the prison proposal is based on a bizarre logic, too. The idea is to isolate potential future criminals. But if Sanchez had served his sentence for the felonies he committed, then his only crime was entering the country illegally. And since entering the country illegally doesn’t in itself increase your risk of being a harmful person, his perceived dangerousness must come down to his felon status. But if that’s the case, why does “anticipatory future-crime logic” not apply in any other sphere? We would fear a world in which someone’s probability of committting a crime was determined by an algorithm, and then if they had over a certain percentage they were incarcerated. The whole idea of incarcerating people for harms they have not yet committed is a totalitarian nightmare. If we were carrying this logic through, we should just never let anyone out of prison, since people who have committed crimes in the past are more likely to commit them in the future. Think of all the lives we would save!
“But he did commit a crime! Entering illegally!” says O’Reilly, jowls flapping with fury. Alright, but then we’re acknowledging it’s not really about keeping people safe. It’s about keeping immigrants out. O’Reilly wants to give harsh mandatory sentences for illegal reentry, but that acknowledges that he’s not interested in the risk those individual people pose. But again, even if he was, he’d be adopting Nightmare-State Future-Crime logic.
Personally, I don’t believe anybody should be deported, because I don’t think national boundaries make sense or have any moral justification. And I don’t make exceptions for criminals, because that’s just trying to shift crime to Mexico, which has even less of a capacity to deal with it. And so, first, I think conservatives (and “only deport criminals” liberals) should acknowledge that they are wishing Francisco Sanchez had killed a Mexican. And I think liberals need to acknowledge that, logically, sanctuary city policies are going to lead to crimes happening in those cities that would not have happened in those cities were it not for the policies. I wish liberals would stop trying to show why Francisco Sanchez should have been deported under their favored regime. He shouldn’t have been, and if the policies were effective, he wouldn’t have been. That’s acceptable, though, because nobody should be deported. The criminal law should take care of criminals like Sanchez, and the immigration law should take care of nobody, because there shouldn’t be immigration laws.