Why Due Process Matters
Maybe a Salvadorean immigrant doesn't evoke your sympathy. But, how will you feel if it's your neighbor or daughter next time?
The Trump administration is fulfilling its promise of deporting illegal immigrants. As a general proposition, I am in favor of that. Laws are there for a reason, and despite the many reasons one might have for evading US immigration restrictions, if you are here illegally, it’s fair game to find and remove you.
If that were the entire story, I would have nothing critical to say about it.
Let me add another caveat. If all of the people being deported were being sent to their home countries to fare for themselves, I would also be in favor of it.
I recognize that some might be in danger —even for their lives. But still, it seems like fair play. Break the law by entering the country without permission, and a penalty of returning to your own homeland seems proportional and legitimate.
Instead, the administration is deporting people to El Salvadoran prisons. What are the facts surrounding that peculiar break with normal penal process.
The deportees are not in El Salvador when apprehended.
They have not broken the laws of El Salvador (at least not to the best of our knowledge).
Trump claims that once they are in prison there, he has no further power to get them released (regardless of their nationality, as they are imprisoned in a sovereign country).
We already know of a handful of deported people who were not here illegally. So far, they seem all to be non-Americans—and non-naturalized Americans. But, do we know that for sure? We don’t.
Normally, our country has a presumption of innocence. That means that anytime you are arrested, the State must prove you are guilty.
It shouldn’t be too hard to prove someone is in the country illegally—there are only a few legitimate ways to be here if you aren’t a citizen or Green Card holder. But in this case, no deportees are getting a day in court. Not even an administrative hearing to establish their citizenry or US immigration status.
They are being swept up in raids based on rumors, tattoos, and other circumstantial evidence.
I’m even willing to concede that most of them are as described: here illegally, dangerous criminals that are part of dangerous gangs.
But what about the ones who are not???
How Many Innocent Imprisonments is Too Many?
Can we justify the imprisonment of innocent people? If we do, how many is too many?
One? Twenty? A Thousand?
What if one of them was your colleague? Or your husband?
This is not morally tricky. It’s clear.
Imprisoning innocent people “by accident” violates every historic tenet of our system.
The entire basis of our promise that everyone gets legal representation flows from the idea that it would be better to free a thousand guilty people than to falsely imprison one.
But we are not just imprisoning them. We are imprisoning them in a different country. In a country where —per Donald Trump—we have no judicial purview.
So if someone innocent—or American—is "accidentally” imprisoned, we CANNOT bring them home. They can potentially rot in prison for life. They can be killed, or raped, or tortured… and it is “out of our hands”.
Sending American Prisoners to El Salvador
Trump has suggested sending U.S. prisoners to the same foreign prison. If this were merely a location issue it might even have merit. But the administration is not only sending them to a different location. They are sending them to a different system of justice. It is a system where our courts, lawyers, evidence and norms do not hold sway. If DNA exonerates a prisoner held in El Salvador, how can we ever free that person?
Who will perform parole hearings? Who will establish whether they have behaved well? How can we ensure no cruel and unusual punishment as our Bill of Rights demands?
There is simply no argument, no matter how contorted, that can justify this complete defiance of our Bill of Rights.
Miscarriages Abound
In my personal experience, I have seen serious miscarriages. I had a fiancé (an active duty military officer) who was falsely arrested and charged with car theft, filing a false police report and using crack. After two years and $40,000, the case was dismissed with prejudice and the police disciplined for the error. But that didn’t give us back the time, money, stress or reputational damage.
I was arrested for a first offence, low-blow DUI and erroneously charged with battery on a law enforcement officer. It was an entirely fictional charge. I paid at least $45,000 in legal fees, penalties, probationary costs and “community service”. There was absolutely no recourse in the face of a lying police officer who had been having a bad day and took it out on me.
And another close friend had his parental rights stripped after being falsely accused of child molestation by an embittered ex-wife after he confessed to being gay and asked for a divorce. He gave up being a father to avoid causing his toddler the trauma of testifying. Moreover, he would never be free of the stigma of being called a sex offender. It was, again, an untrue accusation. It nearly ruined his life.
People are falsely accused and arrested every day. Sometimes its done maliciously and sometimes in good faith. But either way, it can take a long time—even here, with all of our laws, tools, tests and lawyers—to prove one’s innocence. Imagine trying to exonerate yourself from a foreign prison where you have none of those processes or procedures—and where you likely don’t even speak the language.
It is not an exaggeration to compare this to Stalinist Russia or the lawlessness of Duterte whose administration executed drug dealers (or those they believed were drug dealers) on sight. When the United States of America exports its accused lawbreakers and cedes its oversight authority, we have sunk as low as it is possible to go.
Is there any salvation for a country that has so lost its way? I am pessimistic.