Protect your constitutional rights: Don't fall for the Laken Riley Act's security theater

https://thehill.com/opinion/congress-blog/5086688-laken-riley-act-due-process/

Last week, the U.S. House passed its first bill, the Laken Riley Act, beginning the new year with a law named for a nursing student killed by a non-citizen who had recently been cited for shoplifting but was not detained. Non-citizens convicted of crimes like robbery, theft and shoplifting are already subject to mandatory immigration detention under existing laws. This new law would expand mandatory detention to people simply arrested for or charged with such crimes, regardless of whether they actually committed them.

The law thus raises serious due process issues that should concern us all, including the senators who will consider the bill soon. Already, people can be deported for committing crimes of “moral turpitude,” including theft. Despite some of the rhetoric, this law, if approved by the Senate and signed by the president, would not in any way affect which persons can or cannot be removed from the country.

What the law does is require detention, without bond or even a bond hearing, to decide if a person really poses a public safety risk. That is a dangerous concept. We have a foundational constitutional commitment to due process, expressed in the Fifth and Fourteenth Amendments. All people have a right not to be deprived of life, liberty or property without notice and a fair hearing.

This law could be used to detain people who are arrested but never charged with any crime — for example, where police quickly learn they have arrested the wrong person, or a diligent judge or prosecutor notices an important legal problem before a case is arraigned. That is very common, particularly in low-level cases. Probable cause is then not found and the person is promptly released. Under this law, the potential for mistaken identification, false accusations and racial profiling to result in lengthy detention without any safeguards is deeply troubling.

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