At the end of March 2016, a Ninth Circuit Court of Appeals panel published a decision, Ledesma Cosino v. Lynch, in which it found that a statute stating that a person who is a habitual drunkard lacks good moral character is unconstitutional. The statute, INA § 101(f), states:
For the purposes of this chapter—No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established is, or was—
(1) a habitual drunkard;
(2) Repealed. Pub. L. 97–116, §?2(c)(1), Dec. 29, 1981, 95 Stat. 1611.
(3) a member of one or more of the classes of persons, whether inadmissible or not, described in paragraphs (2)(D), (6)(E), and (10)(A) of section 1182(a) of this title; or subparagraphs (A) and (B) of section 1182(a)(2) of this title and subparagraph (C) thereof of such section? (except as such paragraph relates to a single offense of simple possession of 30 grams or less of marihuana), if the offense described therein, for which such person was convicted or of which he admits the commission, was committed during such period;
(4) one whose income is derived principally from illegal gambling activities;
(5) one who has been convicted of two or more gambling offenses committed during such period;
(6) one who has given false testimony for the purpose of obtaining any benefits under this chapter;
(7) one who during such period has been confined, as a result of conviction, to a penal institution for an aggregate period of one hundred and eighty days or more, regardless of whether the offense, or offenses, for which he has been confined were committed within or without such period;
(8) one who at any time has been convicted of an aggravated felony (as defined in subsection (a)(43)); or
(9) one who at any time has engaged in conduct described in section 1182(a)(3)(E) of this title (relating to assistance in Nazi persecution, participation in genocide, or commission of acts of torture or extrajudicial killings) or 1182(a)(2)(G) of this title (relating to severe violations of religious freedom).
The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character. In the case of an alien who makes a false statement or claim of citizenship, or who registers to vote or votes in a Federal, State, or local election (including an initiative, recall, or referendum) in violation of a lawful restriction of such registration or voting to citizens, if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of such statement, claim, or violation that he or she was a citizen, no finding that the alien is, or was, not of good moral character may be made based on it.
The issue of good moral character arose in Ledesma Cosino because Mr. Ledesma Cosino was apparently seeking Cancellation of Removal for Certain Nonpermanent Residents, found at INA § 240A(b), which states:
Cancellation of removal and adjustment of status for certain nonpermanent residents
(1) In general the Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien—
(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and
(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
The relief is for a person who has been in the United States for more than ten years and now lacks permission to be in the United States. If such a person has a spouse, parent, or child who is a United States citizen or permanent resident who would suffer a whole lot of hardship (exceptional and extremely unusual hardship) and the person has not been convicted of certain offenses (of which drunk driving is not on the list), and not be a person of bad moral character, the person can become a permanent resident.
The Court wrote about whether being an habitual drunkard can be a basis to hold that a person lacks good moral character, asking:
Is it rational for the government to find that people with chronic alcoholism are morally bad people solely because of their disease? The answer is no.
Essentially, the Court is saying that alcoholism is a disease and finding that a person with a disease is morally bad because he is sick is not right or constitutionally permissible.
This decision takes a sympathetic view of alcoholics – they should not be permanently banished from the United States because they are morally bad people. If one’s tendencies are towards being sympathetic to the motives of law breakers – stealing ibuprofen when your baby has a fever, sneaking onto a bus when you don’t have bus fare (through no fault of your own) and need to get to work, using drugs because of a drug addiction or gambling because of a gambling addiction – one might hope that this line of thinking – that people who do bad things may not simply be bad, but maybe ill and worthy of care and treatment rather than being warehoused for long periods in prison and/or then banished through deportation.
It could well be that large amounts of crime are motivated not by evil inclinations, lack of morality in society, the dilution of our culture, the absence of fathers, Obama, or whatever, but rather because of disease. It may well be that large percentages (like 25 percent, say) of the population are ill with Fetal Alcohol Spectrum Disorder which affects judgment as well as the ability to support oneself legally. Wouldn’t it be a tragedy if millions of people are punished for crimes they commit because their brains are broken? Wouldn’t it be wonderful if instead of punishing people with diseases, we would have better results if we tried to cure them. We don’t have to rely on broadly diagnosing FASD in the prison population to know that people in prison are mentally ill. Large proportions of prisoners are already diagnosed with mental illnesses better known than FASD.
When California used to execute people, on the day of the execution the Los Angeles Times would publish a long article about the life of the person about to be executed. It was invariably the story of a person with a horrific life story involving neglect and brutality from the youngest age until their final arrest, usually soon after they became adults. While our society is very sympathetic to abused children, as soon as that child turns 18, the sympathetic impulses are turned off and the punitive ones turned on. Megan’s Laws show this best – children facing abuse are provided the full protections of law enforcement including special texts to our cellphones and the commandeering of our road signs, and at the same time, the victims, when they get old enough, are forever segregated and marked when they act out as adults because of their childhood traumas.
The brutality of the system is not just locking people up for decades, but the brutality of the treatment in prison, particularly of the actual mental ill that make up a significant proportion of inmates and whose mental illness do not mitigate against finding guilt and meting out harsh sentences. Under our system, it really doesn’t matter if your brain is broken to be convicted and punished for a crime.
There are plenty of people that do terrible things to other people every day. Some are worthy of punishment. Some may even be worthy of death. But some are worthy of helping and rehabilitating and educating and curing. What would the country be like if all the resources we now invest in locking up people went to figuring out what do to reduce the risk they pose, determining if they are actually sick, and then curing them of whatever ailment they have instead of simply labeling them as morally defective and punishing them?
The little hint of sunshine that Ledesma Cosino v. Lynch provides may be short-lived. The government has indicated that it will ask for re-consideration of this decision and a full Court of Appeals could reverse the decision.
There are two things I am quite sure of: (1)Whatever alternative we choose to the punishment-only model is not going to be more expensive than the punishment-only mode and (2) Whatever alternative we choose will not be any less effective in reducing crime than what we do now. Posted April 24, 2016.