Legal Commentary

Hi, PrawfsBlawg readers! And, for those of us who have started teaching this week or who will start on the next one, have an enriching, interesting, productive and sane semester.

We could start with a smooth, easy, welcoming first post, but, as Kima Greggs says on The Wire, sometimes things just gotta play hard. So, we'll get started by discussing something that has been making frequent and alarmed headlines here in San Francisco for the last few days: our Sanctuary City policy.

Upon receiving our Sunday papers a few weeks ago, we learned from an alarmed exposé in the Chronicle that the City has been systematically avoiding the deportation of undocumented immigrant juvenile offenders. Instead, the system has referred these offenders to social services, a practice that, apparently, has been abused in a number of cases. In the original article, SF Mayor Gavin Newsom linked this policy to San Francisco's "proud tradition as a haven for immigrants." However, after what must have been an incensed reaction to the discovery, the city changed its policy, and will, from now on, deport undocumented juveniles.

The two latest developments are as follows:

(1) In an entrepeneurial judicial upset, a local juvenile court decided to refer a juvenile offender with a truly harrowing personal story to social service, rather than comply with the new deportation policy. Nevertheless, in the end the city prevailed, and it is probable that Francisco G will be sent back to Honduras.

(2) It turns out that one of the juveniles who reportedly ran away from a group home - the scandal that led to the exposure of this entire issue on the Chron - was no juvenile at all.

We will probably see more reports of the harms and dangers of the city's past policies on the Chron in the next few weeks. After all, as Jonathan Simon says in his new book, Governing Through Crime, no one gets elected to office based on a platform of being "soft on crime", and much of the same rationale applies to media coverage. I do think, however, that there is more complexity and depth to this.

Others here will probably be far more qualified than me to comment on issues of federal vs. state policies regarding undocumented aliens. There is also, of course, the angle of city authority; this is, as we all know, not the only time in which Mayor Newsom has  assumed powers and taken actions that resemble those of a state more than those of a city (I refer you all to Valentine's Day of 2004). But I suggest we put aside form for a minute and talk about content. After all, many of us, me included, were cheering for Mayor Newsom in 2004, despite knowing that the marriages were unlikely to survive judicial review. So, was the previous city policy of offering social services to undocumented juveniles really such a bad thing?

Assessing policies through the lens of anecdotal evidence is often problematic, and in criminal justice policy, more so. One of the reasons is our inevitable reliance on false positives for assessment, and lack of information about the false negatives. Yes, the Chron supplies us with a variety of examples of juveniles who managed to game the system. The lack of documentation in the recent case allowed a non-juvenile to be treated as a juvenile; juveniles managed to escape homes; juveniles treated in the system became recidivists. But we are left in the dark about the potential fate of kids like Francisco G., which raises a few important issues.

(1) Admittedly, the social services option is far less than perfect, but is it really worse than deportation? What might we expect to happen to juveniles upon return to their countries of origin?

(2) Francisco G was "abandoned in Honduras by his mother, who moved to Spain, and was repeatedly beaten and harassed by gang members who stole the money she sent back to him". Are we absolutely clear about the dichotomy between offender and victim here, and in many other cases?

(3) How are the reported abuses of the system by undocumented immigrants really so different from similar abuses and "gaming" by citizens? After all, the game is the game. What makes these abuses of the rehabilitative system fundamentally different from abuses by citizens?

In your copious free time, I suggest reading some of the comments that follow these pieces with a sensitive eye for discourse. So much xenophobia creeps in, and it is augmented by the crime-related discussion. These discourses enhance and support each other. The enthusiasm for deporting and imprisoning is overwhelming and somewhat unfathomable.

It's quite likely that the new policy of compliance with Federal regulations will be strictly adhered to from now on. The media's eye is on the juvenile justice system, and legally, it's the right thing to do (if anyone's forecast is different, please comment). But we should look beyond that, and use this as an opportunity to examine our attitudes toward immigrants, the inner workings of the juvenile justice system, and the extent to which we are willing to undertake responsibilities toward minors beyond the formal categories they occupy.