"Husak and Solum, legal theorists and philosophers, argue that laws on immigration are part of a broad pattern. In recent decades, they say, Congress has passed innumerable laws that no one seriously expects will be enforced. Such laws largely seem to serve symbolic purposes and are often designed to placate some powerful constituency -- conservatives in the case of immigration, or the entertainment industry in the case of laws that seek to deter people from swapping copyrighted music and movies.

The yawning divide between reality and what such laws say should happen is what produces the dilemmas that lead to amnesties. Immigration law has produced a situation where an estimated 12 million people in the country -- most of whom look, sound and act like law-abiding citizens -- are supposed to be apprehended, prosecuted and deported, a job that is not only well beyond the capacity of the police and courts, but would wreck substantial parts of the economy were it attempted.

"No one is so stupid as to think police are going to go out and round up 12 million illegal immigrants," said Husak, at Rutgers University. "Ninety million living Americans have used illegal drugs. It is inconceivable you can punish them. Downloading copyrighted music -- half or more of all teenagers are guilty. No one is going to enforce such laws."

The consequence of symbolic lawmaking is over-criminalization, which turns out to be as difficult a problem to deal with in the long run as crime itself. It might sound good for a politician to sternly declare that draft dodgers are in violation of the law and at risk for prosecution, but how do you deal with thousands of Americans who evaded the draft during the Vietnam War -- after the country had concluded the war was lost and a ghastly mistake? You offer them amnesty, of course."

June 4, 2007 - Washington Post (DC)
Department Of Human Behavior:
Out Of Unenforceable Laws, Amnesties Are Born
By Shankar Vedantam