Monday, February 20, 2012

A deeply troubling story: the consequences of a foolish Court

A little more than a year ago, on the 2nd of January in 2011, three people--one of them a fifteen year old girl--were brutally murdered in a North Miami Beach home. On January 20th--just a few weeks later--the man who committed these crimes--or at least participated in them--killed himself in a shoot-out in Bradenton, Florida during the commission of another crime.

Nothing all that shocking so far, right? We already know the world is full of people like this, capable of cold-blooded murder or worse. But here's the kicker: this man--Kesler Dufrene--was from Haiti and had been previously convicted of two felonies in the United States. His second conviction was in 2006. He was sentenced to five years, followed by a court-ordered deportation to Haiti.

So when his sentence was up in October, 2010, what happened? He was simply released. Not deported, despite the court order. The reason: the Haitian earthquake in January 2010. Due to the devastation in Haiti, the Obama Administration put a halt to all deportations to that country on humanitarian grounds.

Frankly, it's easy to understand the justifications for the moratorium. After all, criminals deported back to Haiti in the aftermath of the quake would have made matters worse, if they were allowed back on the streets. And the Haitian government hardly had the resources to put them back in jail. Remember, the earthquake had already destroyed Haiti's largest jail, releasing thousands of prisoners back onto the streets.

Given that reality, the obvious decision--the obvious fix--would be to keep people like Dufrene locked up, either in jail or in a detention center, until Haiti was ready to take them back. Unfortunately, the Supreme Court ruled in a 5-4 decision--Zadvydas v. Davis, 2001--that the ICE (Immigration and Customs Enforcement) cannot detain such people indefinitely. The ICE has six months to carry out the deportation, or release the subject. Unsurprisingly, the dissenting Justices in the case were Scalia, Thomas, Kennedy, and Rehnquist. It is worth quoting from Kennedy's dissent:
The 6-month period invented by the Court, even when modified by its sliding standard of reasonableness for certain repatriation negotiations...makes the statutory purpose to protect the community ineffective. The risk to the community exists whether or not the repatriation negotiations have some end in sight; in fact, when the negotiations end, the risk may be greater. The authority to detain beyond the removal period is to protect the community, not to negotiate the aliens’ return. The risk to the community survives repatriation negotiations.
Note the issue here for Kennedy: statutes in place already gave the Attorney General the right to detain people scheduled for deportation as long as necessary in order to complete the process, because of the possibility that the deportee might pose a real danger to society. The majority--in creating the six-month limit--ignores this issue completely, setting aside public safety in order to extend Constitutional protections for individuals who have either forfeited their citizenship or who never had citizenship to begin with.

Remember, this ruling was handed down over a decade ago, yet we now see how prescient Kennedy's dissent was, with regard to the case of Kesler Dufrene. And he likely has some company. The Miami Herald has confirmed that nearly 700 Haitian convicts were released in the same way during 2010. And it gets worse:
Tens of thousands of deportees, most of them Cubans convicted of serious felonies, are currently out on supervised probation because Cuba won’t accept them back. A Texas Republican House Representative last year unsuccessfully pushed a bill that would have given the government the right to indefinitely detain people who cannot be deported.
This is exactly the issue that Kennedy was addressing in his dissent of 2001. The fact that negotiations with another country have not been successful in achieving an agreement to accept deportees does not relieve the government--or should not, I have to say, since the Supreme Court ruled otherwise--of its responsibility to insure public safety.

While I cannot fault the Obama Administration for halting deportations to Haiti on humanitarian grounds, I can and do fault it for not revisiting this ruling by the Court. Good sense should have prevailed; dangerous and career criminals scheduled for deportation should not have been released. They should have remained behind bars and the Attorney General should have explained why this had to be. If some wanted to question such actions, they could have taken the issue back to the courts and perhaps--eventually--the Supreme Court would revisit the issues and make a proper ruling.

If that had happened, perhaps fifteen year old Ashley Chow would not have been brutally murdered in her home. And who knows how many more cases like hers are out there.

Cheers, all.

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