With Liberty and Justice for Some

Yesterday, the Supreme Court heard arguments in Flores-Figueroa v. U.S., which questions whether the government can charge undocumented workers with aggravated identity theft for using forged documents. Ignacio Carlos Flores-Figueroa purchased identification from a forger, but was unaware that the Social Security number he received belonged to someone else. When he was later arrested by immigration officials, Mr. Flores-Figueroa found himself facing up to two additional years in prison for using someone else’s personal information, despite the fact that he did not mean to.

In 2004, the federal government responded to the increasing menace of identity theft by passing legislation calling for a mandatory two-year sentence for stealing someone’s personal information. Immigration officials have since used this law to pressure undocumented workers into quickly accepting deportation. In Mr. Flores-Figueroa’s case, he was convicted under this new law and sentenced to 51 months for violation of immigration laws and an additional two years for “aggravated identity theft.”

During oral arguments yesterday, the justices seemed troubled by the government’s willingness to try Mr. Flores-Figueroa for identity theft considering he had no intention of stealing from anyone. He purchased a counterfeit Social Security number, not realizing that it already existed. His lawyer argued that there are almost a billion possible Social Security number combinations, less than half of which have been used. Chief Justice Roberts questioned the fairness of sentencing someone to two more years “if it just so happens that the number you picked out of the air belongs to someone else?”

According to the Associated Press, both “the Court’s conservative and liberal justices signaled they have problems with the government’s use of the law against defendants without additional evidence that those defendants knew they were invading the privacy of real people.” And a New York Times editorial stated that this “is a case about the misapplication of federal law. It also is a case about unequal justice. The government is misusing the identity theft law to pressure illegal immigrants to agree to quick deportation.” A decision is expected from the Court sometime this spring.