OUT OF UNENFORCEABLE LAWS, AMNESTIES ARE BORN

The ambitious immigration overhaul package that Congress is studying
has drawn criticism from conservatives who say it offers amnesty to
lawbreakers, and from immigration advocates who say it will not do
enough to bring millions of people out of the shadows.

But to Douglas Husak and Lawrence Solum, the elephant in the room is
that the existing immigration law that underlies the debate has no
connection with reality.

Husak and Solum, legal theorists and philosophers, argue that laws on
immigration are part of a broad pattern. In recent decades, they say,
Congress has passed innumerable laws that no one seriously expects
will be enforced. Such laws largely seem to serve symbolic purposes
and are often designed to placate some powerful constituency --
conservatives in the case of immigration, or the entertainment
industry in the case of laws that seek to deter people from swapping

The yawning divide between reality and what such laws say should
happen is what produces the dilemmas that lead to amnesties.
Immigration law has produced a situation where an estimated 12 million
people in the country -- most of whom look, sound and act like
law-abiding citizens -- are supposed to be apprehended, prosecuted and
deported, a job that is not only well beyond the capacity of the
police and courts, but would wreck substantial parts of the economy
were it attempted.

"No one is so stupid as to think police are going to go out and round
up 12 million illegal immigrants," said Husak, at Rutgers University.
"Ninety million living Americans have used illegal drugs. It is
inconceivable you can punish them. Downloading copyrighted music
[without paying for it] -- half or more of all teenagers are guilty.
No one is going to enforce such laws."

The consequence of symbolic lawmaking is over-criminalization, which
turns out to be as difficult a problem to deal with in the long run as
crime itself. It might sound good for a politician to sternly declare
that draft dodgers are in violation of the law and at risk for
prosecution, but how do you deal with thousands of Americans who
evaded the draft during the Vietnam War -- after the country had
concluded the war was lost and a ghastly mistake? You offer them
amnesty, of course.

Federal laws that make it a crime to include false information on a
mortgage or car-loan application have turned tens of thousands of
people into potential felons -- because they say that their parents
gave them money for a down payment, rather than lent it to them, Solum
says. Saying the money is a gift makes the borrower seem like a better
risk.

"People commit perjury all the time," added Solum, at the University
of Illinois College of Law. "People in civil cases shade the truth in
depositions and on the stand all the time -- and we know that because
there are radically inconsistent stories being told all the time --
but we almost never prosecute perjury that arises in a civil lawsuit.
It probably happens hundreds of times a day."

When laws are passed that cannot or will not be enforced, people
quickly come to understand that the law does not mean what it says.
This is why, if you actually happen to drive at the 55 mph speed limit
on the Capital Beltway, you seriously run the risk of getting
rear-ended by the flood of vehicles that are whizzing by 5, 10 or even
20 miles per hour faster.

There is a law about speeding, but it is not the law that is on the
books. Exceed a certain speed -- it might be 60 or 65 or 70 mph -- and
you are going to get a ticket. What Solum and Husak are arguing is
that, if the cops are going to give you a ticket when you cross 65 but
not when you cross 55, set the speed limit at 65. Get the law to mean
what it says.

"When we set up laws that are intended to express symbolic
disapproval, but that we are not willing to enforce, we send a message
that we are not expecting people to obey the law," Solum said. "The
immigration laws are a perfect example of that."

The problem is not just that when people start interpreting the law on
their own, they come up with wildly different interpretations-- some
people drive 5 mph over the speed limit, others think the magic
cushion is 15 mph. The bigger problem with setting the bar too low, so
that large numbers of people become lawbreakers, say Solum and Husak,
is that it greatly enhances the discretionary powers of police,
prosecutors and the executive branch.

The vast majority of people punished for speeding, drug violations or
downloading music, or for perjury, prostitution or illegal
immigration, are not targeted merely because they are breaking the law
- -- only a tiny fraction of those who break such laws, after all, ever
get punished. Most people who get in trouble are the ones who police
and prosecutors decide, for whatever reason, should be punished, Husak
says. Enacting impractical laws that have largely rhetorical value, in
other words, leads to selective enforcement -- with all the attendant
risks of unfairness and bias.

"The myth is that legislators are the most important people in the
criminal justice system," Husak said. "But when legislators draft laws
that are very broad, they abdicate their roles and give prosecutors
the power to decide who will get punished and who should not."

Regardless of your political affiliations or your views on
immigration, speeding, perjury or downloading music, Solum and Husak
say, that's no way to run a country.