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February 1, 2011

Host: Ted Simons

Birthright Citizenship Bills

  |   Video
  • State Senators Ron Gould (R-Lake Havasu) and David Schapira (D-Tempe) discuss legislative efforts to recognize Arizona residents as citizens of the state only if they were born in the United States to at least one parent who is a U.S. citizen or legal permanent resident.
  • Ron Gould - state senator
  • David Schapira - state senator
Category: Immigration   |   Keywords: immigration, law,

View Transcript
Ted Simons: Good evening, and welcome to "Horizon," I'm Ted Simons. Last week state lawmakers introduced bills defining an Arizona citizen as someone having at least one parent who is either a U.S. citizen or a naturalized citizen. Those pushing the bills hope the move will force the courts to reexamine the U.S. Constitution's 14th Amendment, providing automatic birthright citizenship for the children of illegal immigrants. Joining me is Senator Ron Gould, sponsor of the bills in the Senate, and Democratic Senator David Schapira who serves as the Senate's Minority Leader.
Ted Simons: Why is this bill necessary?
Ron Gould: The Supreme Court has never really looked at this issue. The 14th Amendment was basically drafted to give former slaves citizenship because they had been ruled not citizens by the Dred Scott Amendment about 20 years before.
Ted Simons: So the idea of reconsidering this particular aspect of the Constitution, especially in light of how it affects Arizona, why is this not a good idea?
David Schapura: Well, this issue of many issues has some serious starting decisions, meaning it was decided a long time ago 1898, was when the Supreme Court ruled on this issue. We've got to be talking about the future of Arizona, where our state's headed, not something decided by the Supreme Court over 100 years ago.

Ted Simons: 1898, it was pretty cut and dried back then, not a lot of challenges since then. Why bring it up now?

Ron Gould: Those are Chinese nationals that had permanent legal status in the United States. The Court ruled their son was a citizen. They were not illegal aliens because we had open immigration at the time. Essentially people came to the United States, did their seven years and applied for citizenship. We're under a different program now. The Court didn't really address the illegals. These folks are coming here illegally and having children.
David Schapira: There was no open immigration at the time, especially for Chinese-Americans. We had something called the Chinese exclusion act. People from the Republic of China could not come to the U.S. without being citizens or having prior permission from the United States. It's the exact same problem. You actually had someone who had left the country and tried to come back, was not being allowed in, and that's where this court case stemmed from. We did not have open borders for Chinese-Americans at the time, and we don't have open borders today. It's the exact same situation.

Ted Simons: The idea of forcing the issue to get the Supreme Court to look at it again and perhaps change some things, I know conservatives don't like judicial activism. We've had people on the show complaining about that. Isn't this judicial activism?

Ron Gould: I believe it is, but we're trying to go back to the Court and trying to get a ruling on the issue. It's a 100-year-old issue. Once upon a time in America Scotsmen were not allowed to come to the United States without a letter of reference, where British men were. It's "subject to the authority thereof" that is the phrase we actually question in the 14th Amendment. This has never been litigated. They decided if you were born here, that's good enough, you were a citizen. These bills would be prospective. We're not talking about deportations and going back three generations to see who your folks were. This is prospective. We want to know whether one parent of that child is a United States citizen.

Ted Simons: Why not delineate about the certificates, Why not say the 4 least one parent has to be a U.S. citizen?
David Schapira: It's not a question for me, and it's not a question for bureaucrats. The United States Supreme Court made this decision and took into account the subject of the provision and there interpretation of that provision was talking about people here with diplomatic status, not subject to the laws of our country. Anyone in the United States right now, not here with diplomatic status, is subject to the laws of the United States. There has not been a court in the history of this country that has ruled any different on that issue.

Ted Simons: The "subject to the jurisdiction thereof" is always brought up and always considered. Certainly these folks are subject. You break the law, you're going to go to jail. That is subject to the jurisdiction thereof. How do you see that differently?

Ron Gould: That's not subject to the jurisdiction thereof. These folks owe allegiance to a foreign nation, and thats what we believe the sponsors of the 14 amendment were talking about. Certainly it wouldn't apply to people under the jurisdiction of another country. They have never sworn allegiance to the United States, they are under the jurisdiction of another countries. There's nothing wrong with going back to see if you can get a reinterpretation from the Court, the left does it all the time.

David Schapira: One of the senators in 1868 who voted for the amendment specifically stated he believes citizenship should be extended to all children born to foreigners in the United States. He was very, very clear on this issue. Yes, there are people who disagree on interpretations on both sides. We disagree sometimes on interpretations of bills you and I may vote on. But the fact of the matter is there were people with both views at the time this was passed. The Supreme Court 30 years later in 1898 made a decision on this. The members of my caucus are advocating that we in Arizona start talking about the future and stop talking about what happened 100 years ago.

Ted Simons: And who said what at what time previous to the 1890 ruling, and I understand that, it is a debate that has to happen. Then a decision is made and we have to move forward. Do we have to go back 1866 1868 to the civil Rights Act and the 14th Amendment? Do we have to go back to the original discussions, knowing the case was considered and a ruling made?

Ron Gould: There's nothing wrong with going back and reconsidering the issue. We look through history and decisions change. The Constitution talks about promoting the general welfare. Well, promoting the general welfare at the time of the founders meant a feeling of general well-being. It didn't mean cash assistance. Now the word welfare means cash assistance. There's nothing wrong with revisiting things, it's done all the time. Who's to say when the Court ruled that they ruled correctly?

Ted Simons: If the Constitution is indeed a living document, why not revisit it and see if this is something that needs to be changed?

David Schapira: I'm completely okay with revisiting it, but let's make some priorities. We're in the midst of an economic recession and this is what we're focused on? We can talk about the merits of it. If we had made this change proposed in this bill a century ago, most of us wouldn't be citizens. I wouldn't be a citizen. My great-grandparents came to this country escaping anti-Semitism and oppression in Europe. Their kids wouldn't have been citizens, of this bill would have been in act 100 years ago their kids wouldn’t of been citizens, and I wouldn't be a citizen. Let's not revisit history. Let's talk about the future and if we're going look at the Constitution as a living document, let's prioritize things that are relevant and important for our future and our discussion today.

Ted Simons: Let me ask you this. Are kids born in the United States to undocumented immigrants, and thus receiving birthright citizenship, is that a problem?

David Schapira: That child did not make a decision to break any law, to violate the state's constitution or to violate what the founders intended. That kid did not do anything to violate anything. That was the reason the 14th Amendment was passed. It was the reason it was adjudicated in 1898 in this way as Senator Gould mentioned. We believe people born in this country had a right to citizenship in this country. We believe that children of slaves should have the right to citizenship and why any person born in this country should have that right.

Ted Simons: What do you say to critics who say, you're basically going after kids, you're attacking kids.

Ron Gould: Not necessarily. We're trying to remove the incentives for people to come to Arizona illegally. As it stands now, if a child is born in America they use the child as an anchor to get citizenship for themselves. They skip to the head of the line. People across the world are waiting to become an American citizen. These people are in our system and they do this, and they are gaming it and end up getting accepted before anybody else. People who have immigrated don't like this because they wait their turn in line.

Ted Simons: People say, this is targeting children born in this country. But you're going after -- I want to get a better answer -- you're going after the kids.

Ron Gould: We're not going after children, we're going after the parents and the decisions that parents make. They are under the authority of their parents. It's not going after children. It goes after the parents.

David Schapira: So let's talk about the anchor issue, let's talk about that. The bills don't even mention changing anything about the parents' status. All these bills do is create a second class of birth certificate for people born into this country, people who have committed no crime and were born here like I was born here and you were born here, to be American citizens. That's what this bill addresses. It doesn't address the problems that Senator Gould is talking about. This bill goes after babies.

Ted Simons: Respond, please.
Ron Gould: I would argue it goes after the parents and we need to address it. I have constituents who continuously ask me that, why an illegal immigrant can come across the border and the child is a citizen. They are gaming the system and we need to look at that and this is how we do it.

David Schapira: My great-grandparents came to this country from Germany in the early part of the last century. They were escaping a different kind of oppression. At that time they were facing anti-Semitism. They came to this country seeking a better life. You know what? They did it illegally. They forged documentation to get out of an anti-Semitic Europe. If they hadn't done that, and the 14th Amendment had not existed, my great-grandparents would not have been citizens. We have to think of future generations and people who might come here for similar reasons. Their children, for whatever decision their parents made, their children deserve citizenship in this country if they are born here.

Ron Gould: Currently if you are under persecution in another country you are allowed special status in the United States, and I would argue the Senators Schapira’s grandparents or great grand parents would have been able to obtain that in the United States at the time if it was currently happening.
Ted Simons: Last question before we let you go to a previous point. A lot of folks are saying this is, with all the problems Arizona has right now, this is a waste of time, it should not be at the top of the list or even being considered. How do you respond?
Ron Gould: Two days ago I spent four hours in a committee discussing how much a homeowner's association can charge to copy documents. How much they can charge for xerox fees. If we can discuss that, we can certainly discuss this.

Ted Simons: Thanks for joining us.

David Schapira: Thanks for having us, Ted.

Sentencing Reform

  |   Video
  • Reforming Arizona’s sentencing laws for non-violent offenders could save millions of dollars each year and reduce crime rates, according to a new study commissioned by the Arizona Attorneys for Criminal Justice. Guests include AACJ representative David Derickson, an attorney and former presiding criminal judge for Maricopa County.
  • David Derickson - attorney
  • Cecil Ash - state representative, Mesa
Category: Law   |   Keywords: reform, jails,

View Transcript
Ted Simons: According to a report from ASU's College of Law, Arizona's prison population grew almost seven times faster than its general population over the last three decades. From 2001 -2011 Annual spending for the Department of Corrections grew 66% to nearly $1 billion, about 11% of the state budget. That doesn't include the cost of building new prisons. Earlier today Arizona Attorneys for Criminal Justice released a report the indicates Arizonans could save millions by reforming Arizona's sentencing laws and as David Majure reports they say it could be done without sacrificing public safety.

David Derickson: Arizona's continuing fiscal crisis has focused many commentators, legislators, and taxpayers on the high percentage of the state budget that goes to prisons.

Narrator: At a press conference outside the state capitol today, Arizona attorneys for criminal justice urged Arizonans to consider cost effective ways to reduce it's growing prison population.

David Derickson: We think Arizona's taxpayers want proven criminal justice policies based on facts.

Narrator: Armed with a new report from policy expert Judith Green, AACJ says Arizona should follow the lead of other states.

David Derickson: The Green report asked Arizona to follow what's now considered a proven experiment in other states. New York has reduced its prison population by 19% from 1999- 2009.

Jeremy Mussman: It just makes sense. If you take people in the system and get to the root causes of their criminal behavior, and turn their lives around by giving them the education and job skills so that when they come out they can be productive members of our society, it makes sense to do that, let them out of prison earlier, than to keep them in prison for the entire time without having obtained the skills or education. It promotes the public safety. Statistics show in some states where there's reduced recidivism rates there's been reduced incarceration rates. New York is a primary example of that.

Narrator: We have to wait and see if sentencing reform can gain traction in the state legislature where key members are already on record as opposing such measures.

Ted Simons: Joining me to talk about sentencing reform is Representative Cecil Ash, Republican lawmaker from Mesa. He's made sentencing reform one of his top priorities. And representing Arizona Attorneys for Criminal Justice, David Derickson, a former presiding criminal judge for Marion County. Thank you for joining us.

Ted Simons: The studies in general, this in particular, what's looked at and what's being found?

Cecil Ash: There's a lot of things. One of the objectives we've had is to just examine what's being done in other states. We're seeing that crime is going down in other states and incarcerations are going down. Some states have been able to accomplish a reduction both in the people incarcerated and in the crime rate.

Ted Simons: The states being looked at, are these states similar to Arizona as far as demographics, growth rates, these things?

David Derickson: And even ideology. Texas, as an example, is employing a number of different programs to reduce incarceration and reduce the crime rate. Newt Gingrich has spoken specifically about that particular program. New York, which of course is one of the largest states, has had a significant reduction in incarceration and has had a significant reduction in the crime rate. South Carolina, Mississippi, these are states that you would not expect to be on the forefront of reducing prison populations, and they are.
Ted Simons: Let's talk about some of these ideas. Mandatory sentencing: This gets prominent play here. Reducing mandatory sentences for some nonviolent crimes, what are we talking about here?

Cecil Ash: We're talking low-level drug crimes. Really, any crime where there's not a serious public threat or actual danger. They are crimes such as forgery where nobody's really injured physically. So when physical injury is not a factor, then we can maybe look at other alternatives than to just put someone in prison for a long period of time.

Ted Simons: Can you make a line of demarcation there? That is one of those fuzzier areas that needs to be look at more closely?

Cecil Ash: They always need to be looked at more closely. Where we can make a difference I think is to just give judges more discretion. We have some great judges in the state, and we compensate them for the serious -- for the seriousness of the work they do. We shouldn't tie their hands. That's what I've heard from a lot of judges. They would in many cases like to give a sentence that's different than in the statutes, but their hands are tied and they have to follow the law.

Ted Simons: To some it might seem counterintuitive, getting rid of mandatory sentencing reduces crime?

David Derickson: Well, I don't think we will be reducing or getting rid of mandatory sentencing. There are many terrible, malicious crimes that need to be punished mandatorily. The difficulty is there are a lot of cases where it's unjust to go ahead and impose a mandatory sentence to a person on probation who commits a relatively minor offense, is subject to mandatory imprisonment. Why do we need to send that individual to prison simply because he's committed an offense while on probation? You have to take a look at the offender and the offense and it would be nice to talk to the victim who may be interested in getting restitution back rather than seeing this fellow in prison.

Ted Simons: Let's talk about some of these non prison alternatives then. What are we talking about here?

David Derickson: Well, there are a number of drug programs. We have a huge number of folks in prison who have drug issues, who have alcohol issues. And we need to address that. We have the Probations departments have worked very hard in this area but we knew we had to expand it, we need to understand that serial offenders with drugs need to be treated more than just the first time or the second time with a drug program, but perhaps a third or fourth before they get it. It's a lot cheaper and you can do it without causing any problems with public safety.

Cecil Ash: We can also -- we can impose fines. A lot of people are tax-paying citizens. If they go off to prison for seven years, they lose their house, the family loses their breadwinner many times. They go on ACCCHS and public support. Some of these people could keep working and maybe pay heavier fines, or we could put ankle bracelets on them and restrict their behavior, but also know their whereabouts, those are other alternatives.

David Derickson: That is an alternative not available 30 years ago, 25 years ago. The ability to be able to incapacitate or at least monitor a person intensively with an ankle bracelet makes a tremendous amount of sense, particularly if you've got somebody who really is a wage earner.

Cecil Ash: One of our former Representatives attended a trade show and put on an ankle bracelet. They said, you wear this, and we will tell when you start to have lunch and where you are. He kind of forgot about it, wore it the whole morning. He went back to his hotel with fast food and took a bite of his sandwich. He got a call through the ankle bracelet. You have begun eating in your hotel room. People couldn't do that years ago.

Ted Simons: Let's talk about some folks not too excited about this idea. The Prosecuting Attorneys Advisory Council has a report saying the right people are behind bars. Respond to that -- Right now the right people are there. The people that are there should be there.

Cecil Ash: That's just not the case. I mean, they -- there are many ways to prosecute people. We have the most egregious case in the state, in my opinion, is the case of possession of child pornography, where a former teacher in Glendale received a sentence of 200 years. I read the paper where we have a rapist that was exonerated by DNA testing. But what caught my eye was the rapist received a sentence of 14 years. To compare those two and say one is -- the sentences are disproportionate. It's a waste of taxpayer resources to incarcerate people longer than necessary.

Ted Simons: In general, the right people are behind bars; how do you respond to that idea?

David Derickson: We have 40,000 people behind bars. Darrell Fisher, who wrote the report to which you refer, has stated to a number of people since then there are 5,000 to 6,000 inmates who could be released right now without causing any effect, any negative effect on public safety. I think that's a conservative number. I'm willing to go with half of his number. And I think we'll save millions of dollars in doing so.

Cecil Ash: Let me give you an example. I had a client who was a bicycle thief. He stole a used bike out of an open garage. The value of the bike was probably $200. The plea offer was 10.5 years in prison. We negotiated a plea to eight years in prison. So he may have been guilty, but the sentence was disproportionate to the offense he committed.

Ted Simons: How do you get fellow lawmakers, those who want to be seen as tough on crime, how do you get those folks to say, maybe it's okay to release some of these prisoners and maybe it's a good idea.

Cecil Ash: I think they need to look at the studies that have been done in other jurisdictions. Chris Hessek, professor of law at ASU, showed a study to our sentencing reform committee showing that people don't respond to severe sentences. In most cases people don't even know what the sentence is. They respond to the likelihood of being caught. If we use more of our resources for police and public safety officers, then their presence is going reduce crime more than the severity of a sentence. If you were to ask people what's the sentence for a particular crime, hardly any of these people know.

Ted Simons: How do you convince folks Arizona has crime problem, let's release prisoners, send fewer of them to jail? How do you do that?

Daiv Derickson: Start talking about the fact that Newt Gingrich and Edwin Meece, president Ronald Reagan's attorney general, Grover Norquist, people who are rock-ribbed conservatives that nobody ever accused of having a liberal bone, are now saying they are right on crime that -- which is an organization that Newt Gingrich is the head of at this particular point -- that we can be tough on crime, but we need to be tough on the spending for criminal justice policy. They point out there are people who are going to prison who are -- who will -- the unintended consequence is they are becoming better criminals and in fact are more dangerous when they come out. So we need to look at other alternatives. Incentivizing probation departments to keep people on probation rather than sending them to prison is something that they back. Incentivizing prisoners, if you are on good behavior, if you are going for education, if you are working in prison industries, you can be considered for an early release. Wouldn't that make sense?

Ted Simons: Last question, very quickly: Where does it go from here, as far as pushing this through the legislature?

Cecil Ash: I've dropped several bills that have to do with sentencing reform. We need those bills to be heard, carried and voted upon. That's where we're going.

Ted Simons: Gentleman, great discussion, thanks for joining us.