Christie Thompson, The Marshall Project, May 18, 2017
The Baltimore City state’s attorney last month instructed her staff to exercise discretion when prosecuting immigrants for low-level offenses. The directive was framed as a way to push back against Donald Trump’s mission to increase deportations.
“As the current administration in Washington continues to increase its efforts to enforce immigration laws, we as prosecutors are the torch-bearers of justice in this city,” the prosecutor, Marilyn Mosby, said in a news release. “We must utilize our prosecutorial discretion as we do in every case by considering the unintended collateral consequences that our decisions have on our immigrant population.”
Mosby, and other prosecutors across the country, are looking for ways to shield some low-level offenders from deportation.
If an immigrant is convicted of a crime, it makes them more at risk of deportation. But even small changes in the way a crime is prosecuted can have a big impact in immigration court. For example, “petit larceny” and “possession of stolen goods” might carry similar criminal consequences in state court, but larceny is considered a more serious crime under federal immigration law. The same is true for the more serious “transportation of drugs” versus “possession with intent to sell.”
When it comes to sentencing, whether someone spends 365 days in jail or 364 can be the difference between deportation and remaining in the U.S. How diversion programs or other alternatives to jail are set up can also influence an immigration outcome. Some programs dismiss charges after a defendant pleads guilty and completes the requirements. But for immigrants, a guilty plea counts as a conviction under federal immigration law. Prosecutors can instead decide to put someone through the same program but without requiring a plea.
The Brooklyn district attorney, Eric Gonzalez, implemented a similar measure a week before Mosby’s announcement and is bringing in two immigration lawyers to advise his staff.
Some changes prosecutors are making have not been directly aimed at immigrant offenders, but benefit them nonetheless. Kim Ogg, the district attorney in Houston’s Harris County, created a pre-charge diversion program for low-level marijuana offenses, which will allow many noncitizens to avoid a criminal record. In Chicago, Cook County State’s Attorney Kim Foxx raised the threshold for what counts as a felony in shoplifting cases, which could shield some from future problems with Immigration and Customs Enforcement.