Since the election of Donald Trump, who promised the immediate deportation of criminal aliens (“bad hombres”) from the United States, many U.S. localities have redoubled their efforts to protect and offer “sanctuary” to immigrant populations. “Sanctuary cities”—and in some cases, states—impose a range of obstructive policies in order to make it as hard as possible for federal authorities to arrest and remove aliens eligible for deportation.

Originally, municipal sanctuary policy established a practice of non-inquiry regarding a resident’s immigration status. The policy has evolved into active non-cooperation with federal law enforcement, to the extent that Chicago, San Francisco, and New York City, for example, will not comply with requests to detain illegal immigrants unless they have recently been convicted of a serious crime and a judicial warrant accompanies the request. Federal immigration authorities have been banned from operating within municipal jails, and sanctuary cities will not expend any resources in assisting these agents.

Despite these efforts, it has not been possible for cities to protect their illegal aliens from deportation to the extent that sanctuary advocates demand. Cities cannot forbid federal officers from arresting criminal aliens in their homes, on the streets, or in courthouses. The best way to deter possible deportation, sanctuary advocates contend, is to limit interactions between illegal immigrants and the criminal-justice system, not in the traditional way—by obeying the law—but rather, by not enforcing the law. If there are no arrests, then there is no criminal record to base deportation orders on. For example, anti-incarceration and pro-illegal-alien groups have demanded an end to policing of quality-of-life offenses, on the grounds that arrest for “minor crimes” like farebeating or marijuana possession can lead to a noncitizen’s deportation. But officials aware of the importance of Broken Windows-style policing to public order are loath to give up on it.

As an alternative means of protecting immigrants, prosecutors are announcing that they will take immigration status under consideration when charging noncitizens and while making plea agreements. Acting Brooklyn District Attorney Eric Gonzalez says that because he is “unflaggingly committed to equal and fair justice for all the people of Brooklyn,” he is ordering his prosecutors to strive for “immigration-neutral disposition” of cases. Gonzalez clarified, “now, more than ever, we must ensure that a conviction, especially for a minor offense, does not lead to draconian consequences like deportation, which can be unfair, tear families apart, and destabilize communities and businesses.”

Baltimore is following a similar policy. A memo distributed to staff in the Baltimore State Attorney’s Office explains that current federal policies “have increased the potential collateral consequences to certain immigrants of minor, non-violent criminal conduct.” As such, prosecutors are instructed to “consider the potential consequences” of criminal charges against those immigrants.

California already takes this approach at the state level: its penal code states that “the prosecution, in the interests of justice . . . shall consider the avoidance of adverse immigration consequences in the plea negotiation process as one factor in an effort to reach a just resolution.” The Supreme Court, in its 2010 Padilla case, ruled that defense attorneys should inform their clients of the possible consequences of a guilty plea to their immigration status. California has gone a step further, enlisting the prosecution in the cause of going as easy as possible on the defendant.

The intention of these new standards is to punish immigrants without besmirching their criminal records. If someone is arrested for farebeating, for instance, charge him with disorderly conduct; if marijuana possession, plead him down to loitering. The problem with this new approach is that it creates separate, unequal justice systems for two categories of people, based on citizenship—an apparent violation of Title III of the Civil Rights Act, which prohibits discrimination on the basis of national origin. An illegal immigrant arrested for document fraud, in this view, should be charged lightly because he might get deported; a citizen arrested for the same crime faces no such collateral penalty, so he can be charged as harshly as possible.

“I regret to say that we’ve seen district attorneys openly brag about not charging cases appropriately—giving special treatment to illegal aliens to ensure these criminal aliens aren’t deported from their communities,” said Attorney General Jeff Sessions recently. “They advertise that they will charge a criminal alien with a lesser offense than presumably they would charge a United States citizen. It baffles me.”

Sessions should bring federal civil rights charges against any jurisdiction shown to be affording such special treatment to criminal aliens. The Supreme Court held  that “classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny.” Alienage is the state or condition of being a noncitizen; if prosecutors are allowed to treat the native born or naturalized more harshly than aliens, then perhaps we will soon need to include citizens as a protected class. Selective prosecution of any group of people cannot be permitted in the United States.

Photo: 2017 U.S. Immigration and Customs Enforcement


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