My view: Does the punishment fit the crime?

By Kurt Manwaring

Published: Wednesday, Feb. 23 2011 12:00 a.m. MST

The Utah House of Representatives recently passed HB70, a bill that addresses how Utah will deal with illegal immigration. As the proposed legislation goes to the Senate for consideration, I would like to raise three questions to be considered in the forthcoming debates.

One of the most obvious questions about illegal immigration is whether the punishment fits the crime. Many people dislike the comparison of illegal immigration to traffic violations — both of which are civil, not criminal infractions. To avoid this much-debated comparison, consider an offense which is far more serious than illegal immigration, such as robbery or assault. The Utah Sentencing Commission has a set of guidelines that take into account mitigating circumstances when deciding on the punishment for crimes that are truly wanton. It is true that illegal immigrants are not U.S. citizens. But is it just to refuse to consider their mitigating circumstances when we do so for hardened criminals? Does the punishment fit the "crime?"

This leads to another question: if it is appropriate to be disproportional in our administration of justice, is the definition of the "crime" of illegal immigration a good one? Laws are always changing, including the definition of what makes an immigrant "illegal."

Years ago, for all intents and purposes, belonging to a certain religion was punishable by death. Germany and the Jews may come to your mind at this point, but I am referring to Missouri and the Mormons. In the early period of Mormonism, an executive order was issued in Missouri legalizing the murder of Mormons. In today's enlightened society, that punishment hardly fit the alleged crime. Beyond that, however, the law was by no means a good one. By the same token, we should also be careful about withholding mercy from illegal immigrants because they break a law that will likely be different 10 years from now. There are crimes that will always be crimes. Murder, rape and theft will always be wrong. Immigration is not one of these absolute crimes.

And what of all this talk about mercy and compassion? Mercy, we have already seen, is available through official government means. Compassion, on the other hand, is supposed to reside within us all. The current immigration debate has made a four-letter word of compassion. In reality, compassion is the ability to see the heartache in the lives of others, understand the reasons for their actions, and yearn to ease their pains.

It does not mean that we turn a blind eye to justice or pragmatism. Immigration has problems related to economics, national security and public safety that cannot be ignored because we feel compassion for others. But at the same time, we should not set aside compassion so that we can wholly focus on "an eye for an eye and a tooth for a tooth" form of justice. It has been said that this approach merely leaves us all blind and toothless. As it relates to immigration, we certainly need two eyes so that we may see with one the human needs of the immigrant — and with the other the practical concerns of our state. We are not in a position where we must choose to see only one or the other. When all is said and done, it is likely that an adequate solution will have elements of both compassion and pragmatism.

As we shape the policy that will to some degree define who we are as Utahns, let us ask ourselves if the punishment fits the crime, if the definition of the crime is unchangeably just, and whether compassion has a proper role.

Kurt Manwaring is pursuing a graduate degree in public administration at the University of Utah.

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