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As the U.S. Supreme Court struck down most of Arizona’s SB 1070 anti-immigrant law this week, it declined to make a final decision regarding the constitutionality of a provision that requires police to detain an arrested individual until they can establish the person’s immigration status. Justice Kennedy, writing for the majority of the Court, recognized that police officers may resort to racial profiling to carry out this part of the law, which has been dubbed the “papers please” provision, but said that Arizona should have an opportunity to implement the law in a constitutional way.

The Court’s decision not to address this part of SB 1070 likely will lead to racial profiling and unconstitutional detention for Arizona’s Latino residents. Because this decision carries such dire consequences, it is troubling that the Court relied on data provided by one of America’s most notorious supporters of racial profiling to justify it.  Justice Kennedy uncritically cites data from the Center for Immigration Studies (CIS), an organization founded by a man The New York Times called “The Anti-Immigration Crusader.”

Justice Kennedy wrote on page six of the ruling:

[I]n [Arizona]’s most populous county, [] aliens are reported to be responsible for a disproportionate share of serious crime. See, e.g., Camarota & Vaughan, Center for Immigration Studies, Immigration and Crime: Assessing a Conflicted Situation 16 (2009) (Table 3) (estimating that unauthorized aliens comprise 8.9% of the population and are responsible for 21.8% of the felonies in Maricopa County, which includes Phoenix).

What the Court failed to acknowledge—and CIS omitted from its report—is that Maricopa County is under the authority of Sheriff Joe Arpaio, who is infamous for aggressive anti-immigrant policies and tactics. The U.S. Department of Justice has a lawsuit pending against Arpaio in relation to findings of rampant racial profiling within his office.   

The Justice Department’s investigation revealed that Latinos were four to nine times more likely than their non-Latino counterparts to be stopped while driving in Maricopa County. DOJ’s expert noted that “this case involves the most egregious racial profiling in the United States that he has ever personally seen in the course of his work, observed in litigation, or reviewed in professional literature.” Likewise, the Maricopa County Sheriff’s Office is notorious for its “crime suppression sweeps” where officers intentionally concentrate law enforcement presence in Latino and immigrant communities over multiple-day operations.

In addition to racial profiling by Maricopa police at the point of arrest, Arpaio, in concert with Maricopa County Attorney Andrew Thomas, developed policies to ensure that immigrants comprised a disproportionate share of its jail population and prosecuted immigrants on questionable felony charges.  In 2006, Thomas helped draft and pass Arizona Proposition 100, which eliminated the possibility of bail for immigrants, who have an immigration detainer lodged against them, after being charged with most felonies or with DUI while driving without a valid license  (Ariz. Rev. Stat. § 13-3961).  Without the opportunity for bail, it is not surprising that immigrants would be disproportionately represented in the Maricopa County Jail.  

Moreover, in 2005, Thomas started to prosecute undocumented immigrants for felonies based on an ethically questionable interpretation of Arizona’s human smuggling criminal provisions. Thomas charged undocumented immigrants as felon co-conspirators to the smugglers who brought them into the United States.  There has been extensive coverage of the horrors wrought by these smugglers at drop houses where they beat, starve, rape, and imprison undocumented victims. Nevertheless, Maricopa County Jail statistics list these victims as felons.

As the Justice Department emphasized in its troubling findings of rampant racial-profiling in Maricopa County, “[m]uch of a modern-day police agency’s effectiveness is predicated on building a relationship of trust with all segments of the community. … The absence of trust [can] substantially compromise [] effective policing by limiting the willingness of witnesses and victims to report crimes and speak to the police about criminal activity.”

The Supreme Court does the public a grave disservice in so carelessly lending the Court’s imprimatur to Maricopa County’s criminal data and the CIS report. The Court’s decisions have serious consequences for society, and it must not base those decisions on compromised data.  

Mark Fleming is the national litigation coordinator for Heartland Alliance's National Immigrant Justice Center.