If Alabama’s new immigration law never takes effect, prosecutors and court officials across the state might just breathe a sigh of relief.
The new law — a sweeping bill that establishes criminal penalties for being an undocumented immigrant, or for hiring or transporting one — could add substantially to the docket in some criminal courts. With the state’s judicial system facing $13.2 million in cuts this year and circuit courts across the state planning to lay off workers, officials say they don’t know how they’re going to pay for enforcement of the new law.
“I don’t know what the costs are going to be,” said Calhoun County District Attorney Brian McVeigh. “And I don’t know how we will pay for them.”
The new immigration law, signed by Gov. Robert Bentley last month, could be the toughest in the nation. Like Arizona’s much-debated law, the Alabama bill allows local law-enforcement officers to check the immigration status of people they stop on streets and highways. But Alabama’s law goes even further, establishing criminal penalties for anyone who knowingly gives an illegal immigrant a ride in a vehicle, or for “harboring” if someone even rents a home to an illegal immigrant.
Civil rights groups have challenged the law in federal court, arguing that the bill’s criminalization of everyday interactions with immigrants is an unconstitutional overreach. The bill also has been panned by Hispanic and civil rights groups as a potential green light for racial profiling.
But for local court systems, the problem is one of dollars and cents.
‘A law… nobody can afford’
The new immigration law establishes several new criminal offenses, none of which has been tried in state courts before. Under the bill, any immigrant who cannot produce proof of citizenship or legal residency is guilty of a misdemeanor, requiring up to 30 days in jail. There are stiffer penalties for people who transport or hire undocumented immigrants, including fines of up to $1,000, as well as felony charges and prison time for anyone who hires more than 10 illegal immigrants.
The new offenses will come on the books just as Alabama’s courts absorb a $13.2 million cut to their budget, which is now at $138.8 million. The cuts have forced drastic staff reductions in courthouses across the state. In Calhoun County, court officials have said they plan to cut 13 of 25 employees.
“My guess is that we’ve got another law on the books that nobody can afford to enforce,” said Talitha Powers Bailey, who directs criminal law clinics at the University of Alabama’s law school.
Bailey said that despite the term “illegal immigration,” entering the country without paperwork has never been a state criminal offense.
When federal agents arrest immigrants who can’t produce proof of residency, they go into immigrant detention facilities where immigration courts hear their cases — all at federal expense. The new law, Bailey said, would create a need to give suspected illegal immigrants due process at Alabama’s expense.
To Bailey’s knowledge, that’s never been done before. Similar laws in other states, such as Arizona, have been blocked in court.
No one seems to have an estimate of what enforcement of the law will ultimately cost. The Legislative Fiscal Office, which provides official estimates of the cost of legislation, wasn’t able to nail down an estimate during the legislative session. A final analysis of the law, released Monday, was also inconclusive.
House Fiscal Officer Frank Gitschier said a cost estimate was impossible because of the large number of unknowns in the law. It’s still not clear how many people will be hired to enforce the law, or how many immigrants will wind up in jail.
“If we’re going to give people a number, we want to be able to back it up,” he said. “And we couldn’t do that.”
‘Wait in line’
The law requires police to take suspected illegal immigrants to their nearest magistrate for review of their immigration status.
Calhoun County court officials have said that all but one of the county’s magistrates will be laid off under the new budget.
“I’m assuming they mean a federal magistrate,” said Circuit Clerk Ted Hooks.
Asked how local courts would handle immigration prosecutions with a reduced staff, Hooks said “I guess they’ll have to wait in line with everybody else.”
Members of the Alabama District Attorneys Association are keeping a close eye on how U.S. Immigration and Customs Enforcement responds to the bill. In the past, ICE officers haven’t taken custody of locally apprehended illegal immigrants unless those immigrants were charged with a crime in addition to their immigration status, said Marshall County District Attorney Steve Marshall, a member of the District Attorneys Association’s executive board.
If ICE doesn’t pick up immigrants arrested under the new Alabama law, Marshall said, local police could find themselves picking up immigrants, holding them for 30-day sentences, and re-arresting them as soon as their sentence is over.
“Once they’re out of custody, they’re in the country illegally, so they’re offending again,” Marshall said.
New agents, same funding
The pain isn’t being felt only at the local level. The new immigration law authorizes the Alabama Department of Homeland Security to appoint agents to enforce the law. And just to make sure the agents are indeed appointed, the law also requires the department to report twice yearly on its progress.
Homeland Security director Spencer Collier said his agency is funded mostly by federal grant money. In the coming fiscal year, he said, the agency will get about $400,000 from the state’s General Fund, and about $5 million in federal grants. That’s a big drop from last year, when the agency got almost twice as much federal money.
According to his interpretation, Collier said, enforcement of the Alabama law will have to be paid entirely from Alabama funds. He said he expects to hire one full-time immigration officer and perhaps two retired officers working on a part-time basis. He said he’s looking for ways to fund the positions from both state and federal funds, creating agents who work part-time on anti-terrorist intelligence and part-time on immigration.
“We’ll set up daily time sheets,” Collier said, to make sure the federal government is never billed for enforcement of the Alabama law.
A bigger problem is a section of the law that requires Homeland Security to set up a sort of customer service center for employers who need help using e-Verify, the federal government’s system for determining the immigration status of potential employees.
Collier said the agency looked into hiring a contractor to run that call center. The price tag, he said, was $4 million — more than three quarters of his agency’s budget.
“It’s clear that we don’t have the money to farm it out,” he said. “We’re trying to do it ourselves.”
Collier said the department would probably dedicate three or four current employees to running a phone bank for e-Verify.
If state officials are looking over their shoulders at the pending court case — and hoping courts will block the bill — they aren’t letting on.
“We’re going to march on until somebody says ‘stop,’” said John Shremser, spokesman for Homeland Security. “We’ve seen what’s happened in other states, but we can’t be sure that will happen here.”
There may be a reason officials are reluctant to speculate. The new law allows any resident to sue a government agency for not enforcing immigration law. If found to be out of compliance, an agency would pay between $1,000 and $5,000 in penalties for every day of noncompliance.
One local official, speaking on condition of anonymity, said officials are afraid to say the Alabama law is unenforceable, because that statement could be used against an agency in a later lawsuit.
Star assistant metro editor Tim Lockette: 256-235-3560.