Newt Gingrich published an article with the American Enterprise institute, also posted on National Review online on August 16th, asking the President to call Congress from recess for an emergency session to pass a “simple and straight-forward” bill to protect Americans from criminal illegal aliens. He also introduced his plan during the Iowa campaign. Under his plan, anyone arrested for a felony will be checked against a federal database, that has the “speed of an ATM machine.” Unless the check affirms that the accused is legally in the United States, he will be presumed to be illegal and detained.
Mr. Gingrich’s goal is to protect Americans from what he calls “preventable” killings. The triggering incident for his plan was the tragedy in Newark where an illegal immigrant, recently indicted for repeatedly raping a five-year-old relative, threatening the lives of her family, and assaulting patrons at a bar, participated in the execution-style shooting of three students.
When a former Speaker of the House and a potential candidate for the Presidency repeatedly urges the President to call Congress from recess to enact an emergency law, and when the elite AEI (with whom Mr. Gingrich is a senior fellow scholar), publishes that opinion, one should analyze it seriously. It is the intent of this article to review the advantages and disadvantages of Mr. Gingrich’s proposal.
To start with, no database can detect undocumented aliens, since they are not in the system. Accordingly, one has to establish a database for all those who are here legally so that a “no-hit” would reflect illegal presence in this country. Therefore, such a database must begin by recording all U.S. citizens and legal permanent residents. That means approximately 300 million individuals must first be entered into the proposed database.
The next relevant fact is that there are many people legally present in the United States who do not fit the above two categories. The US accepts hundreds of millions of visitors annually through its airports, ports and land entry points. These individuals must also be added to the database immediately for the system to instantly reflect all individuals lawfully present in the U.S. In addition, those who leave pursuant to the terms of their visas should be removed from the database so that the database will identify those who overstay illegally. Registering all those millions may cause huge delay lines at points of departure. The effect may be particularly hard to America’s trade with Canada, since Canadians, who currently do not require visas to travel to the U.S., would no longer be able to enter and leave with ease.
In addition, there are numerous individuals who, while not in current legal status, have prerequisites to become legal in the future. Those include, for example, asylum applicants who have to wait for years to get green cards. Also included are those who marry U.S. citizens, and those who have immediate US relatives and have resided in this country for a long period of time. Many of those individuals require a court hearing to determine their legality. Mr. Gingrich’s program will have to register them currently as legal so they do not appear in the system as illegals.
The database will also have to be updated to allow for those who die (taken out of the system), those who are born (inserted into the system), those who change their names as a result of marriage, and many others whose names may have to be added or deleted from the system for whatever reason.
Therefore, the program appears to literally require billions of dollars and an army of new government employees constantly updating the database with millions of new and revised data entries on a daily basis. This daunting and costly prospect is difficult to envision at this time.
Now, lets look at the advantages of the program. Mr. Gingrich wants the database to detect the undocumented from those accused of felonies, so they can be detained. In order to better assess any advantages of the program, let’s compare Mr. Gingrich’s proposal with what we have now.
Under the current system, our courts notify the Immigration Service of any non-citizen who is convicted of a serious felony. The Immigration Service then places a hold on the criminal while he is serving jail time. Upon completion of his sentence, the convict is not released, but rather is turned over to the Immigration Service, which can puts the alien under detention until deportation. Therefore, Mr. Gingrich’s proposal will only make a difference in cases where the accused is an illegal alien who is released prior to conviction. The reason being that if convicted, the current consequences are the same as they would be under Mr. Gingrich’s program.
However, under our current systems, those accused of felonies should not be released, whether legal or illegal, but must instead be detained unless the judge sets appropriate bond. The bond should be high enough to ensure that the accused will not flee. If that does not happen, the matter becomes a failure of the criminal justice, not the immigration system.
With regards to the Newark killings, which triggered this proposal by Mr. Gingrich, the shooter was an illegal alien who had recently been indicted for repeatedly raping a five-year-old relative and threatening her life and the lives of her family. He had also been arrested 10 months previously for assaulting patrons at a bar. With this record, this person should not have been released in the first place and should have been in detention, awaiting trial, regardless of whether he was a US citizen or an illegal alien. It therefore appears that Mr. Gingrich’s system would make a difference only in a very narrow line of cases where a judge might set bond for an accused illegal alien, whereas Mr. Gingrich would have a federal database denying any bond under such circumstances. In effect, Mr. Gingrich’s proposal would create a bureaucracy, located in Washington, DC, that can overrule bond decisions of criminal trial judges in cases where the accused is illegally in this country. Other concerns include cases in which the system may be in error, and individuals are mistakenly detained without due process. Considering the inefficiency of our immigration system, it is not unreasonable to think of erroneous detention of numerous people for weeks, months or even years while their legal status is being clarified.
In summary, Mr. Gingrich is proposing a system that will cost untold billions to maintain, and whose advantage appears to be a few cases per year where a trial judge sets an inadequate bond for an illegal alien who is accused of a felony. But inadequate bonds and early releases endanger society, not only in cases where the felons are illegal aliens, but also in cases when the felons are U.S. citizens or lawfully present. Therefore, a far less expensive and more practical alternative would be to establish a system of setting bonds, so that dangerous individuals accused of heinous felonies are more likely to remain in jail pending their trial, regardless of whether or not they are illegals or U.S. citizens. Such system should protect us more than Mr. Gingrich’s proposal, while not adding to our federal government bureaucracy, and will continue to preserve the decision-making power of those at the most local level.