The California legislature has approved what has been dubbed a “Miranda” requirement for criminal aliens. AB 2792, the Transparent Review of Unjust Transfers and Holds Act (the TRUTH act), has been approved by the lower chamber, and an equivalent bill has been passed in the Senate. It requires that deportable criminal aliens provide consent, in writing, before speaking to an Immigration and Customs Enforcement (ICE) officer.
If Gov. Jerry Brown (D) signs the TRUTH Act, deportable criminals in California will have veto power over whether they can be interviewed by federal immigration officers before being released. According to the authors of the proposed law, Assemblyman Rob Bonta (D) and State Senator Mark Leno (D), is what would be required under AB 2792:
The TRUTH Act "would require a local law enforcement agency, prior to an interview between the United States Immigration and Customs Enforcement (ICE) and an individual in custody regarding civil immigration violations, to provide the individual a written consent form, as specified, that would explain, among other things, the purpose of the interview, that it is voluntary, and that the individual may decline to be interviewed. The bill would require the consent form to be available in specified languages. The bill would require a local law enforcement agency to provide copies of specified documentation received from ICE to the individual and to notify the individual regarding the intent of the agency to comply with ICE requests..."
Additionally, the TRUTH act, "would require the local governing body of any county, city, or city and county in which a local law enforcement agency has provided ICE access to an individual during the last year, to hold at least one public community forum during the following year, as specified, to provide information to the public about ICE's access to individuals and to receive and consider public comment. By requiring these local agencies to comply with these requirements, this bill would impose a state-mandated local program."
U.S. Rep. Lou Barletta (R-PA) has called on the Obama administration to file a lawsuit against California should the law be enacted. “It is sad that California is the home of this legislation that would make it even more difficult for ICE agents to do their jobs and enforce federal immigration law,” Barletta said in a statement. “We already knew that various jurisdictions actively excused illegal behavior, but this would turn the entire state into a giant sanctuary where illegal immigrants know they can enjoy protection.”
"You have the right to remain silent and refuse to answer any questions...", is a phrase that is well-known not only to those who watch police dramas on television, but also among anyone who is arrested by police. The “Miranda warning” It bears the name of Ernesto Arturo Miranda, a man who was born in Arizona and who lived a life of crime. The concept of "Miranda rights" has been part of American law ever since the Miranda v. Arizona Supreme Court decision of 1966, which found that Miranda’s Fifth and Sixth Amendment rights had been violated during his arrest and trial for armed robbery, kidnapping, and rape of a mentally handicapped woman.
The so-called Miranda warning or Miranda rights, is a warning given by police in the U.S. to arrestees that tells them that they have right to remain silent in police custody before they are interrogated. Miranda, himself, would ultimately be convicted of his crimes.
Immigrants' and Citizens' rights
The Supreme Court has struggled for more than a century over whether aliens - legal or not -- have the same rights as American citizens. These are largely based on the 14th Amendment of the Constitution, which guarantees "due process of law" to "any person within the jurisdiction" of the United States:
"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The Supreme Court settled the issue well over a century ago. Long before then, a framer of the Constitution, James Madison -- who was the second president of the United States -- wrote: "that as they [aliens], owe, on the one hand, a temporary obedience, they are entitled, in return, to their [constitutional] protection and advantage."
More recently, the Supreme Court ruled in Zadvydas v. Davis (2001) that "due process" of the 14th Amendment applies to all aliens in the United States whose presence may be or is "unlawful, involuntary or transitory." Twenty years before that ruling, the Supreme Court ruled that the state of Texas could not enforce a state law that prohibited illegally present children from attending grade schools, having noted that all other Texas children were required to attend.
The court ruled in Almeida-Sanchez v. United States (1973) that all criminal charge-related elements of the Constitution's amendments (the First, Fourth, Fifth, Sixth and the 14th) such as search and seizure, self-incrimination, trial by jury and due process, protect non-citizens, whether they are legally or illegally present in the country.
Also, three key Supreme Court decisions in 1886, 1896 and 1903 cited the 14th Amendment basis for the consistent ruling of the court that aliens, legal and illegal, have constitutional protection in criminal and certain civil affairs in the justice system.
In Yick Wo v. Hopkins (1886), the court ruled that:
"Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and unequal hand, so as practically to make unjust and illegal discriminations between persons of similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution [the 14th Amendment]."
In Wong Win v. United States (1896), the court ruled that:
"It must be concluded that all persons within the territory of the United States are entitled to the protection by those amendments [Fifth and Sixth] and that even aliens shall not be held to answer for a capital or other infamous crime, unless on presentment or indictment of a grand jury, nor deprived of life, liberty or property without due process of law."
The fact is that illegal aliens are covered by and protected by the Constitution has been settled law for 129 years and rests on the word: "person." It is the word "person" and on "due process" and "equal protection" in the 14th Amendment to the Constitution that aliens enjoy the full array of rights accorded to citizens, with the exception of voting, access to some government jobs, and gun ownership. However, the latter of these may be yet another right that aliens may soon be granted.
At issue in the California bill is not whether or not aliens (legal and illegal) have most rights accorded to citizens, but that by signing it, Governor Brown will impose yet another burden on the officials of Immigration and Customs Enforcement to carry out their duties.