Klukowski: Make Crimes by Illegal Aliens Federal Crimes, Override Sanctuary Cities


ACRU Staff


December 4, 2017

This column by ACRU General Counsel Ken Klukowski was published December 3, 2017 by Breitbart.

One way to stop injustices like the acquittal of Kate Steinle’s killer is for Congress to make violent acts committed by illegal aliens federal crimes, which would empower the U.S. Department of Justice, led by Attorney General Jeff Sessions, to prosecute them in federal court.

Millions of Americans are outraged that a local jury refused to convict Jose Zarate for killing young Kate Steinle. Some question the effectiveness of the county prosecutor. All Zarate was convicted of was illegally possessing a firearm. Zarate was charged and prosecuted under California state law.

Therein lies the problem. In every state, trial courts are at the county level. That means, the court in this case was the Superior Court for the County of San Francisco—overwhelmingly populated by ultra-liberals in the city of the same name. And it means that the prosecution was led by a prosecutor hired by the voters of San Francisco, and Zarate’s fate was decided by a jury comprised exclusively of San Francisco residents. San Francisco is a far-left sanctuary city, and the jurors in this case surely reflect the city’s left-wing profile.

The Tenth Amendment would normally make it unavoidable that these matters would be decided in state court. Under the U.S. Constitution, the sovereign states have general jurisdiction, which means that they wield “police power” to make all sorts of laws, including those concerning public safety, personal morality, and the general welfare of society.

Under the Tenth Amendment, the federal government has no police power. Instead, it is a government of limited jurisdiction, or “enumerated powers.” If there is not a specific provision of the Constitution granting a specific issue to the federal government, then that issue belongs to the states alone.

Crimes are acts that harm the social fabric, and often involve both public safety and personal morality. Therefore, many crimes—such as various forms of homicide—are generally state crimes. That constitutional requirement is also usually good policy.

There are exceptions. The federal government can define crimes involving homicide on federal land, on military bases, in the nation’s capital, or against federal officers. Each of those intersects a federal matter in the Constitution.

Zarate was charged under California law, where prosecutors sought first-degree murder, but there are several lesser forms of homicide where they should have held him accountable for Steinle’s death.

The San Francisco jury acquitted Zarate, notwithstanding the undisputed facts. He had a firearm. It discharged because of his actions. The bullet struck Steinle. She died. It was a felony for him—as a convicted multiple-felon—to even touch a firearm for any reason.

Some say that portions of the evidence were circumstantial and, thus, that prosecutors could not prove to the San Francisco jury that Zarate deliberately acted with premeditated malice to take Steinle’s life. Zarate’s defense lawyers said the gun went off by accident or that he was shooting at sea animals. That would foreclose first-degree murder.

Even if those far-fetched and contradictory statements were true, that would still be manslaughter or, at minimum, involuntary manslaughter (i.e., negligent homicide). Because, as a convicted felon, he was violating a criminal statute when he touched the gun at all, it should be “negligent per se,” meaning automatically negligent if anyone gets hurt as a result of his handling the firearm.

Given the overwhelming evidence of criminal guilt, the best explanation is that Zarate was acquitted as a result of “jury nullification.” That is when a jury decides that a crime has been committed but believes that, in the interests of justice, this particular defendant should not be punished with a conviction in this particular situation.

It appears probable that the jury voted not to convict because this case was seen as a referendum on the legitimacy of sanctuary city policies and in opposition to President Donald Trump’s immigration policies. The jury likely acquitted Zarate to make a political statement.

Unfortunately, with prosecutions conducted solely at the level of a single county, that same tragic miscarriage of justice could happen repeatedly in other sanctuary cities around the country. The people of those cities are so opposed to enforcing the borders and following an America First policy that they are already openly defying federal immigration law in the first place.

But there is one way to overcome liberal juries and liberal-state bias refusing to convict criminals in their sanctuary cities: Make violent offenses federal crimes when the perpetrator is an alien who is in this country unlawfully.

Under Article I, Section 8, Clause 4 of the U.S. Constitution, the federal government has exclusive jurisdiction over all aspects of immigration and naturalization. That principle is so broad it has been cited even to strike down state laws that should have been upheld, like Arizona’s law enforcement measure invalidated in 2012 in United States v. Arizona.

Congress can pass a federal law making murder and other violent crimes federal offenses when they are committed by an illegal alien. That way, the case will be prosecuted by a U.S. attorney appointed by President Trump and under the command of Attorney General Sessions. And the jury would be drawn from all over the state or a large part of the state, not just a single county. (In this case, the jury would be from the Northern District of California.)

A typical federal prosecution team is much more experienced and successful than a county prosecutor’s office and also has all the investigative resources of the FBI at their disposal for building the case. A federal prosecution should have dealt justice to Zarate for killing Steinle, whether in the form of premeditated murder, intentional manslaughter, or involuntary manslaughter. Under a well-written federal statute, Zarate should have been charged with capital murder in the federal system and faced the death penalty if convicted.

Such a law would not displace the states. They could still have their own laws and bring their own prosecutions. But this federal law would create a route to seek justice when the state systems prove too politicized to do what they should. It would create two routes for punishing crimes by those in this country illegally, not just the current one.

Ever since Kate Steinle’s tragic death, there has been talk of passing Kate’s Law in response. In addition to Congress enacting President Donald Trump’s immigration plan, Congress should pass a Kate’s Law that federalizes a broad array of criminal acts and thereby stop illegal aliens who commit violent crimes against American citizens.



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