06/07/2010 10:02 am ET Updated May 25, 2011

Measuring SB 1070's Nationwide Detriment to Law and Order

In a legislative journey full of contradictions, perhaps the greatest irony surrounding the enactment of Arizona's SB 1070 is that the law was championed by elected officials who purport to be supporters of law and order. In fact, the new law presents a serious threat to public safety, not just in Arizona, but nationwide.

As many have noted, including experienced law enforcement leaders, requiring police officers to enforce immigration laws will lead many victims and witnesses of crime to refrain from approaching the police with critical information. Indeed, some victims and witnesses may flee rather than cooperate with police as a result of the fear that SB 1070 will engender among immigrants and others likely to risk detention and arrest under SB 1070 due to a police officer's "reasonable suspicion" that they are undocumented.

The recent amendments to SB 1070 signed by Governor Brewer do little or nothing to allay the fear of any interaction with police that many community members will feel. The amendments did alter the essentially limitless application of the "reasonable suspicion" standard to "any lawful contact" by a police officer, but the change to the only slightly less expansive "any lawful stop, detention, or arrest" has no practical effect on police interaction with the community. First, the amendments also made clear that the standard applies even in enforcing the most obscure of local infractions. More important, because SB 1070 also creates a new state crime for being undocumented, police officers could "convert" any witness or victim interview into a stop or detention based on suspicion that the individual is in violation of that new state law. Under threat of private lawsuits -- which SB 1070 invites -- police officers would feel a great compulsion to engage in such bootstrapping. In short, victims and witnesses can take little comfort in the amendments, and fear of the police would still seriously hamper law enforcement efforts against serious crimes.

Of course, others also should take little comfort from the amendments. Criminals have as little ability to distinguish undocumented immigrants from citizens as anyone else, and criminals have no particular interest in confining their victimization on the basis of immigration status in any event. Thus, all Arizonans will suffer from the fears that SB 1070 creates as critical cooperation with law enforcement diminishes. Indeed, because criminals also do not confine their activities to one state, people elsewhere may find themselves victimized by a criminal who might have been caught but for the atmosphere that the new Arizona law creates.

A second anti-safety effect of SB 1070 is the likely exodus of some law enforcement officers. Many officers, understanding the fear-induced repercussions of the law or simply uncomfortable with the racial profiling SB 1070 induces, may choose to retire or leave the state to seek employment elsewhere. Even in difficult budgetary times, localities are always seeking to hire trained law enforcement veterans in order to avoid training and other costs. There is of course no way to know how many police officers in Arizona will choose to vote with their feet.

But those states and localities that may benefit from police officers moving from Arizona will certainly face harm in the other inevitable effect of SB1070. Under the Constitution, Arizona has no right or ability to deport anyone from the country, and this is one element of exclusive federal authority that SB 1070 does not question. Therefore, Arizona will seek to transfer the thousands of people swept up in SB 1070's indiscriminate dragnet to federal Immigration and Customs Enforcement (ICE) custody.

Unless the federal government refuses to accept transfer, ICE would have to detail hundreds or thousands of agents to process and detain those transferred by Arizona police. These are ICE agents who would otherwise be engaged in federal enforcement priorities, which target criminals and fugitives. Thus, residents of other states will see ICE agents who once worked to remove immigrants guilty of serious crime shifted to processing and detaining peaceful immigrants arrested under SB 1070, with the concomitant harm to public safety in the communities these agents once served.

Fear among victims and witnesses leading to decreased cooperation with police, an exodus of well-trained police officers, and a shift of federal officers from combating crime to detaining peaceful immigrants. That is quite a list of public safety accomplishments for SB 1070's sponsors. It appears that their commitment to public safety is as thin as their commitment to Arizona's economic progress and to constitutional compliance.