http://www.azdailysun.com/articles/2006 ... ews_77.prt

Lawmakers water down offense for illegal entry

By HOWARD FISCHER
Capitol Media Services
PHOENIX -- State legislation to make felons out of those who entered this country illegally will be diluted today to lessen the offense.

House Majority Leader Steve Tully said Monday the idea of imposing one-year prison terms on people who may have been here for years is causing heartburn among some legislators. Tully, a Phoenix Republican, said he believes a misdemeanor offense would be sufficient for a first-time offender.

And Tully said he wants the final measure crafted so that offenders are deported rather than winding up behind bars, at state expense.

But Tully also said he has concerns that overzealous law enforcement officers or prosecutors "might not use it with the degree of discretion we would expect." That follows a decision by Maricopa County officials to use a year-old anti-smuggling law to go after not just coyotes who make money bringing people across the border but also the smuggled immigrants themselves. Even Rep. Jonathan Paton, R-Tucson, who crafted that bill said that was never his intent.

Tully said, though, he and other legislators remain convinced some state action is necessary.

SB 1157, which already has passed both the House and Senate in similar forms, is designed to give state and local police a method of stopping and arresting people who cross the border illegally. It also specifically immunizes police officers who question people from being sued.

Among those who want that power is Cochise County Sheriff Larry Dever.

He said while dealing with the problem of border crossers is and should be the responsibility of federal agencies, their failure means his county is stuck with the problem. Dever said he sees trespass legislation as a tool.

Dever, however, said he opposes the idea of reducing the crime to a misdemeanor. "It's virtually meaningless," he said.

He cautioned, though, that lawmakers need to realize that if they leave the offense a felony they also need to come up with cash.

"You're going to have to provide the funds to secure bed space, which is nonexistent," Dever said. And there also will need to be money for prosecutors to pursue the charges as well as the defense attorney who would have to be appointed to represent those arrested.

But Dever's views in support of a new trespass law are not shared by Santa Cruz County Sheriff Tony Estrada.

He said the only way the legislation can be enforced is through racial profiling. And Estrada said that means problems in a county where a large percentage of residents are Hispanic but here legally.

For example, Estrada questioned what would happen if his officers came across a group of people who they want to question about their status and one of them was not Hispanic. Estrada said he's not sure if his deputies could question that person "or would I naturally assume because he is Anglo-Saxon should I lave him alone" even though he might also be in this country illegally.

Sen. Barbara Leff, R-Paradise Valley, who crafted the state legislation said she supports reducing the penalty. But Leff, like Dever, said she believes it is necessary to create a state crime to deal with people who violate federal immigration law.

"We need to be very mindful of what we can do as a state," she said. "And one of those things is to do the best that we can do to close the border."

She called her legislation "a second line of defense to stop people as they come across that border."

Leff said Arizona has been "the most porous border" since federal immigration officials made it more difficult for people to cross into this country through California and Texas.

"We as a state do have a right to say it is time to close that border, to be that second line of defense and to try to protect the citizens of Arizona," she said.

Tully said he believes the legislation can be crafted to give police the tools they need to target those who are just coming across the border -- and not to harass established families.

"There's concerns on how this might be utilized against this population," he said. Tully said this still leaves Congress free to make illegal presence a federal felony, as is the case with HR 4437 which is awaiting action in the U.S. House of Representatives.