The Supreme Court will hear arguments Wednesday in a case testing a policy pioneered by the Bush administration to leverage plea bargains from illegal immigrants.
At issue is a 2004 federal law that imposes a mandatory two-year prison term for identity theft.
The facts of this case illustrate the question before the court.
Ignacio Flores Figueroa, a Mexican national, came to the United States illegally. For six years, he worked in an Illinois steel plant using a false name and a Social Security number that belonged to no one.
Then, in 2006, for some unknown reason, he decided he wanted to work under his real name, and he bought a counterfeit resident ID card and Social Security card.
Needless to say, his name change aroused his employer's suspicions, and Figueroa was soon arrested and charged with being in the country illegally, using fake immigration documents and aggravated identity theft. He got four years on the first two charges, and an additional two-year mandatory penalty for the aggravated identity theft.
The Word 'Knowingly'
At the Supreme Court on Wednesday, Figueroa's lawyer Kevin Russell will argue that the identity theft statute and its mandatory penalty was wrongly applied to Figueroa because the statute requires knowing use of someone else's identity documents, and Figueroa didn't know the Social Security number he was using belonged to a real person.
"It really comes down to a question of whether you can commit identity theft if you don't know that the person whose identity you're mistakenly using even exists," Russell says.
The government counters that the grammar of the statute permits it to charge aggravated identity theft regardless of whether the accused knows the Social Security number he is using belongs to a real person. The law imposes a mandatory two-year prison term for anyone who "knowingly transfers, possesses or uses ... identification of another person."
Forcing Deportations Through Threats
Former Deputy Attorney General Paul McNulty readily admits that the Bush administration latched on to the language of the aggravated identity theft statute and used the threat of its two-year prison term to force illegal immigrants to accept voluntary deportation and shorter prison terms for other immigration violations.
"The real hope was that individuals would avoid that kind of penalty and willingly plead to illegal entry or illegal presence in the United States and voluntarily be deported," McNulty says.
Last May, for example, the government raided a kosher meat plant in Iowa and indicted hundreds of workers on identity theft charges for using Social Security numbers that were assigned to others. Faced with the threat of two-year mandatory sentences, most of the workers pleaded guilty to lesser charges and were sentenced to less than six months in jail.
Immigration lawyers contend that some of the people trapped this way have legitimate claims to staying in the U.S. They say that Congress didn't enact the identity theft law as a remedy for illegal immigration, but rather that the law's tough penalties are aimed at criminals who, for example, steal your identity in order to raid your bank account.