Javert: You are a thief.
Valjean: I stole a loaf of bread.
Javert: You robbed a house!
Valjean: I broke a window pane. My sister's child was close to death. And we were starving.
Javert: You will starve again, unless you learn the meaning of the law.
Valjean: I know the meaning of those nineteen years, a slave of the law.
…
Look down, look downYou'll always be a slaveLook down, look downYou're standing in your grave
…
In year 1835. Mr. Thomas Tustin was living in England. He stole bacon in order to feed himself and his family. As a result of his thievery, he was deported from the United Kingdom to Australia. He never saw his family again, he never left Australia, his body is still buried in Tasmania to this day. He, at the time, had one son, Thomas Jr, born in 1833.
That man’s descendant is Contigo law’s founding attorney, Gage Herbst.
While humanity used to offer the most extreme of punishments for theft, punishments including death, exile, life in prison, and having your hands cut off, we have evolved as a society. Somewhere we recognized that such a severe punishment does not always match the crime. Lifetime punishment for minor theft was not warranted.
The Eighth Amendment to the Constitution states that no cruel or unusual punishment may be inflicted, including no excessive bail or excessive fines for a crime.
Looking back at the stories of Mr. Tustin or of Jean Valjean, it seems like outrageous tales of a less evolved society. That is, until the Laken Riley Act.
Laken Riley was a 22-year-old nursing student studying at the University of Georgia in Athens Georgia. Ms. Riley was tragically murdered by Jose Antonio Ibarra while jogging near her university. Mr. Ibarra had entered the United States illegally in 2022, was apprehended and released.
Under immigration law, if an individual found at the border claims asylum, he is detained until he can pass a credible fear interview where an official determines whether they have a credible fear to return to their country. This is a practice that both former President Biden and President Donald Trump’s administrations historically followed. Individuals are also fingerprinted, and background checks are run.
Mr. Ibarra, allegedly, had been arrested on September 13, 2023 for acting in a manner to injure a child less than 17, per an article published by the Independent on November 21, 2024. However, this could not be verified.
The Laken Riley act was passed in response to Ms. Riley’s death. Prior to the Laken Riley act, an individual who had committed a crime involving moral turpitude was subject to mandatory detention while awaiting deportation proceedings. Other criminal acts would also subject someone to mandatory detention as well, including drug offenses, prostitution, human trafficking, and other serious crimes. While the individual need not have been convicted, they need to have at least admitted to the essential elements of a crime involving moral turpitude or other relevant crimes to be subject to mandatory detention.
Mandatory Detention means that they have to be detained in a detention facility, at taxpayer’s expense, until immigration court proceedings are complete.
Theft has always been considered a crime involving moral turpitude and, as such, resulted in mandatory detention. However, there was an exception for someone who had only committed one minor crime involving moral turpitude, the maximum possible sentence for the crime was less than a year, and the individual was sentenced to less than six months in detention.
Arguably, this provision was created to prevent excessive punishments for the Valjeans and the Tustins of the world. To prevent cruel and unusual punishments.
However, the Laken Riley Act changed all of that. The Laken Riley Act requires the Department of Homeland security to detain any individuals who are unlawfully present in the United States or who did not possess valid entry documents when attempting to enter the United States if they have been accused of, arrested for, convicted of, or admit to having committed burglary, theft, larceny, or shoplifting. Note here that no admission or finding of guilt is required. If a store owner simply reports that someone stole something from their store and charges are filed, that person is now subject to mandatory detention, even if they are actually innocent. This is the end of “innocent until proven guilty” for intending immigrants.
There are no exceptions for minor offenses. Nineteen years for stealing a loaf of bread.
While the circumstances surrounding Laken Riley’s death are horrific, the Laken Riley Act will not address or prevent further deaths like it.
First, Mr. Ibarra had not been accused of any crime of theft. While he had been accused of endangering a child, allegedly, that is not a theft offense. Even had the Laken Riley Act been passed prior to her death, Mr. Ibarra likely would still have been on the streets.
Second, although Mr. Ibarra was undocumented, forcing detention of all undocumented peoples who commit minor crimes will not necessarily keep the streets safer. An article published by the Brennan Center for justice published on March 8, 2024 shows that the violent and drug crime offending rate among undocumented immigrants is half that of US born citizens. If the goal is to prevent violent crimes, why aren’t harsher punishments placed on US citizens when they are twice as likely to commit violent crimes than undocumented immigrants?
Simply stated, immigrants don’t kill people, people kill people.
While Laken Riley’s death is horrific and tragic, it is being politicized to detain immigrants indefinitely. Which potentially violates the 8th amendment of the constitution which prohibits cruel and unusual punishment.
The Laken Riley Act also creates further constitutional issues in the way it is written. The 5th and 6th amendment create the concepts of “innocent until proven guilty.” Hundreds of years of precedent have created a justice system that requires the government to prove a crime beyond a reasonable doubt. The Laken Riley Act simply dismisses this corpus if the person has no claim to immigration status.
At the mere accusation, immigration can now detain an individual indefinitely. Nineteen years for the accusation of stealing a loaf of bread.
Some who want to be “tough on crime” may argue that this is justified. That anyone who commits a crime should do the time. However, not only does this bill create significant violations of civil liberties, it also creates serious costs to the taxpayer. According to an article published by Politico on January 10, 2025, the Laken Riley Act is likely to cost taxpayers 3 billion dollars. This is just, however, to implement.
According to the American Immigration Lawyers Association, it costs the US taxpayer an estimated $164.65 per day per detainee. With the number of possible individuals subject to mandatory detention, the cost to the taxpayer could be astronomical.
Individuals who are accused of retail theft (not convicted) could be detained at the taxpayer’s expense for indefinite periods of time. Yet, the US government seeks to make it harder and harder for immigrants to obtain permission to work in the United States and lawfully provide for themselves and their families while waiting decisions on their pending lawful applications. The government created a six-month waiting period for work permits for asylees. They continue making the application fees for work permits more and more expensive and have now attempted to revoke parole and temporary protected status programs that provided work authorization for hundreds of thousands.
This seems to create a never-ending cycle of poverty, detention, and taxpayer burden. Thus, even many immigrants following proper legal channels are forced to live in poverty, detention, and fear. The Laken Reiley Act, ultimately, falls short of accomplishing its goal and will result in massive violations of human rights for Jean Valjean-like acts.
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