Encouraging crime?

Today's Inquirer reports a demonstration in Trenton, NJ against legislation by Congressman James Sensenbrenner which would (among many other things) make illegal alien status a felony. Earlier, a much bigger demonstration in Chicago drew an angry crowd of 100,000 -- dwarfing any of this past weekend's antiwar demonstrations.

Almost everyone agrees that illegal immigration is a mess. But there's nowhere near a national consensus on what to do about it, or in what order. With the coming elections, politicians are understandably nervous, and this is not an issue which breaks neatly along either side of the conventional left-wing/right-wing political spectrum. While the most vociferous opponents of illegal immigration are conservative Republicans, the Bush administration is clearly not in their camp, and on this issue, the president doesn't seem especially amenable to changing his mind to suit the tastes of people claiming to be his "base."

I'd like to take a look at certain language in the bill that's creating the stink right now, Congressman Sensenbrenner's H.R.4437 -- the "Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005" (described as "Referred to Senate Committee after being Received from House"):


`SEC. 274. (a) Criminal Offenses and Penalties-



`(C) assists, encourages, directs, or induces a person to reside in or remain in the United States, or to attempt to reside in or remain in the United States, knowing or in reckless disregard of the fact that such person is an alien who lacks lawful authority to reside in or remain in the United States;


`(E) harbors, conceals, or shields from detection a person in the United States knowing or in reckless disregard of the fact that such person is an alien who lacks lawful authority to be in the United States;


`(G) conspires or attempts to commit any of the preceding acts,


`(2) CRIMINAL PENALTIES- A person who violates the provisions of paragraph (1) shall--

`(A).... where the offense was not committed for commercial advantage, profit, or private financial gain, be imprisoned for not more than 5 years, or fined under title 18, United States Code, or both;

(B).... where the offense was committed for commercial advantage, profit, or private financial gain--

`(i) in the case of a first violation of this subparagraph, be imprisoned for not more than 20 years, or fined under title 18, United States Code, or both;

[NOTE: If the above link doesn't work and you want to read the original, simply copy and paste the bill number -- 4437 -- here.]

For starters, I'm not quite sure what the word "encourage" means in a legal context.

We're not talking about morality here, are we? The reason I ask is because the word "encouragement" means to instill with courage -- an idea which goes to the heart of morality.

I hate to sound hysterical, but there's something that just rubs me the wrong way about making it a federal felony to encourage someone. Nothing in the bill spells out what the word "encourage" means. Most people can understand what alien smuggling is, but there's a huge difference between packing people into the trunk of your car to evade a roadblock and wishing someone luck in remaining a resident of the United States.

Would it be illegal to say, "I hope you stay, Josť, and I hope someday the laws are changed! Good luck, and may God be with you!" (Or equivalent expressions like "adios.")

Or do you have to buy the guy a beer and, like really sit down and encourage him? (Like "Don't give up hope, Josť! Always look on the bright side of life!")

Sensenbrenner can't be talking about moral encouragement, can he? I mean, we still have the First Amendment right to freely associate with whomever we want, and we also have the right to hold opinions, don't we?

The hell with morality then. This must be some sort of legal definition. And as a self-hating lawyer, I feel a certain moral obligation to think legally.

The most common legal definition of "encourage" involves accessories:

An accessory before the fact is a person who encourages, procures and otherwise assists in a crime, but is not present when the crime occurs. Mere knowledge and/or approval of a crime are not enough; there must be more assertive activity involved.

The accessory after the fact is the person who assists after the crime, protecting the participant(s) or facilitating escape. This role pertains regardless of whether the assisted party was a principal or an accessory before the fact. It is not necessary for the accessory after the fact to be absent from the scene. He is liable if he is a passive observer but provides aid after the crime.

The problem here is that the criminal offense does not involve a specific plan or activity, but the crime is the mere presence of a person "who lacks lawful authority to be in the United States." The offense is an ongoing one, a crime of status, and not of action.

Encouraging someone to continue in that status would be a federal felony.

Do we really want to go there?

In my view, the immigration mess results from sloppy border control efforts over the past several decades. The federal government, while pretending to enforce the law, looked the other way while millions of people crossed the border illegally. And now that same federal government would make it a felony for its own citizens to "encourage" the very people it negligently allowed to enter. It's tempting to say that this is passing the buck, but I think it's more than that. It's creating a huge new class of American criminals. Not just the aliens, but dissenters.

I hate to restate the obvious, but laws that create many millions of new crimes and add many millions of new criminals do not stop crime; they increase it.

Why increase crime?

And what about landlords? Could renting an alien an apartment become a felony? Selling an alien a car? Where under the Constitution does the federal government derive such power? What say the federalists?

While I think illegal immigration is out of control, I think H.R. 4437 is irresponsible legislation. Why am I not surprised that Sensenbrenner's behind it? He's the same guy who sought to make it a federal five-year-felony for people witnessing teen drug crimes to fail to affirmatively become government informants.

At times like this, I feel encouraged to leave the United States. I don't think they've have made that a crime yet.

(Maybe I should take advantage of the loophole. . . But where would I go? Where on this planet is the freedom we once enjoyed anywhere to be found?)

UPDATE (03/22/06): Senatorial hopeful Paul Streitz thinks we are at war:

Mexico has declared war on the United States. The Mexicans call it Reconquista. They say they are reconquering Aztlan.

This is a war of the 21st Century. It is not conquering the United States by armed troops. It is conquering the United States by a demographic invasion unprecedented in the history of the world. Never has any country ever allowed millions of people to come through its borders unchecked, uncontrolled and then given housing, education, medical care and welfare.

Mexico is at war with us and our government is surrendering.

Senators Kennedy, McCain, Specter and Lieberman are surrendering this country to the Mexicans. Amnesty is surrender.

Amnesty is surrender to those who have invaded our country, broken our laws and remain as conquering invaders on street corners throughout every town in America.

I don't agree with Streitz's invaders-on-street-corners view, but I think it shows how polarizing this issue can be.

posted by Eric on 03.21.06 at 08:12 AM


You know, if the GOP was smart, they would try to get this bill signed just before the 06 election or the 08 election. Get the increase in Felonies pinned on the next term's winners.

mdmhvonpa   ·  March 21, 2006 3:59 PM

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