SCOTT SIMON, HOST:
The new Congress is acting fast to pass what's called the Laken Riley Act. Forty-eight Democrats joined every Republican in the House to pass a bill that would mandate federal detention if a person in the United States illegally is even accused of certain crimes. The bill is named after a nursing student in Georgia who was killed last year by a Venezuelan man who'd crossed into the U.S. illegally. George Mason University law professor Ilya Somin, who's also a Cato Institute scholar, argues in the libertarian "Reason Magazine" that the Laken Riley Act is unjust. Professor Somin, thanks for being with us.
ILYA SOMIN: Thank you for having me.
SIMON: Current laws allow for detention in violent cases like rape and murder. You say that extending that to allegations of theft or burglary, which the Laken Riley Act does is, quote, "likely to impede genuine crime-fighting efforts more than they help them." How so?
SOMIN: Well, this potentially could lead to vast wastage of law enforcement resources on people who pose little or no threat to public safety and predictably diverts those resources away from combating real crime.
SIMON: You argue in this piece that it would give the police and other law enforcement officials - I think you - believe your phrase is perverse incentives.
SOMIN: Yes. Normally, state and local prosecutors and police try not to arrest and prosecute people unless there is a high chance of securing a conviction. But in this situation, if police or prosecutors arrest or accuse an undocumented immigrant of theft, even if the accusation has little or no basis, that leads to mandatory detention by the federal government. So Officials who are nativists or cater to nativist or anti-immigrant public opinion in their area can essentially use this to detain people who probably have not committed any crime and there's no real evidence against them, and the detention would be paid for by the federal government. So it's like a free lunch for nativists, local government law enforcement officials.
SIMON: What about the argument, Professor, which I'm sure has been posed to you, that, in fact, people you're talking about who are undocumented have broken the law?
SOMIN: So they have broken the law, possibly, but so many of them have nonetheless legitimate reasons to remain in the U.S., such as to pursue asylum cases and the like. Moreover, the fact that somebody has broken the law does not necessarily mean that there should be mandatory detention, even without any kind of conviction or a trial. Doing that is a violation of due process, a huge wastage of law enforcement resources and not something we normally do any time somebody is accused of committing a minor crime. In this case, we're talking about even the most minor sorts of theft, like stealing a piece of candy, you know, from a store or just being accused of stealing it, and similarly, merely illegal border crossing by itself is also a relatively minor crime.
SIMON: No doubt, Professor, you understand you're confronting in the case of Laken Riley - a case that shook up a lot of people - and the argument would be advanced that the person accused of killing her wouldn't have been able to do that had they been in jail.
SOMIN: My answer to that is that by that standard, you would have to have mandatory pretrial detention of everyone who was ever accused even the most minor crime because there's always a small chance that if they're not immediately detained, they might commit a more serious crime. It both would be hugely unjust to many thousands of people. And again, it would actually divert law enforcement resources away from pursuing genuinely dangerous criminals.
SIMON: And tell us about the economic argument you make in Reason Magazine, too.
SOMIN: Immigration detention is actually quite expensive. The federal government estimates about $165 per day for each adult prisoner detained. Secondly, if you detain people for even the most minor suspicion, they're - obviously, while they're being detained, they're not contributing to the economy, and undocumented immigrants of many kinds do in fact make major contributions to our economy. And, of course, you inflict economic costs on their families, many of whom are actually U.S. citizens or permanent residents.
SIMON: You are chair of constitutional studies at the Cato Institute, which I think we can fairly describe as a libertarian think tank. How do you feel generally about how the U.S. should regulate immigration?
SOMIN: So this is obviously a much broader topic. But in general, my view is that we should make legal migration much easier than it currently is. That would be good for migrants fleeing horrible poverty and oppression. It would be good for the U.S. economy. And also, it would reduce disorder at the border because of the fact that much of that disorder is caused by the fact that for most of those who would like to migrate to get more freedom and opportunity and escape oppression, there's no legal pathway for him to do it. So predictably, you get a big black market.
SIMON: What about the argument the Laken Riley Bill is policy that the people of the United States voted for - and indicated to in public opinion polls, too?
SOMIN: So my answer is first, I bet many of the people don't actually know what this bill actually does. In particular, it doesn't actually target violent criminals and is likely to make violent crime worse rather than better. And second, the fact that something is popular, if indeed it is popular, which is not clear, doesn't make it right. There's a long history of very horrible, unjust policies being popular - slavery, the oppression of women, many other examples. And there's also, sadly, many examples historically of harmful immigration policy being popular. Right and wrong are not determined by public opinion polls.
SIMON: Ilya Somin of George Mason University and the Cato Institute. Thanks so much for being with us.
SOMIN: Thank you so much. Transcript provided by NPR, Copyright NPR.
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