Immigration Blog Essay

Reforming Criminal Justice in an Era of Mass Deportation

During the Obama administration, officials deported a record number of immigrants, immigrant detention ballooned, and immigration crimes became the majority of federal prosecutions. Since President Trump took office, these trends have only intensified. As outlined in his January 25, 2017 Executive Order, the administration intends to hire thousands of new immigration officers, deny federal funding to so-called “sanctuary cities” and revive the discredited “Section 287(g)” and “Secure Communities” programs that turn local police and sheriffs into immigration agents. The Trump administration has also made immigrants even more vulnerable by terminating policies that protected certain groups from deportation, including by attempting to rescind the Deferred Action for Childhood Arrivals (DACA) program.

Harnessing the power of local criminal justice agents as “force multiplier[s]” is essential to President Trump’s enforcement plans. For lawful permanent residents, harsh immigration laws enacted over the past two decades mean that a wide range of criminal convictions can result in deportation. For undocumented immigrants, even a simple arrest can trigger the deportation process. What role can state governments play in resisting the large-scale deportation of their community members?

Over the past decade, California has established itself as an immigrant-welcoming state. Thanks to the work of dynamic immigrant rights advocacy organizations and an innovative state legislature, all Californians now enjoy important markers of state citizenship, including driver’s licenses, in-state college tuition, and state professional licenses. These reforms to California’s civil law — which Professors Karthick Ramakrishnan and Allan Colbern have labelled the “California Package” — are designed to integrate immigrants into the broader social fabric. While these earlier reforms promoted an inclusive vision of belonging, they did not restrict the state’s voluntary participation in federal deportation efforts.

As deportation threats have intensified, however, the California legislature initiated a new generation of laws that focus on a previously neglected area of statewide reform: disentangling the state’s criminal justice system from federal immigration enforcement. California’s trailblazing legislative solutions are based on the key insight that simple changes to the criminal law and procedure can limit the extent to which the state’s criminal justice system is used as a tool of mass deportation.

Consider California’s groundbreaking “364 day” misdemeanor law. Many deportation proceedings are triggered by convictions carrying a possible or imposed sentence of at least 365 days. For example, immigration law makes a crime of violence or a theft offense with a sentence of at least 365 days an “aggravated felony,” and thus a deportable offense. With the passage of Senate Bill 1310 in 2014, California shortened the maximum punishment for state misdemeanors by one day: from 365 to 364 days. With almost a million misdemeanor arrests in California each year, this one-day change offers significant protection against deportations based on minor convictions. As the California Senate’s Committee on Public Safety stressed in its analysis of the bill, deportations have deep societal and human costs: “Many of those deported for minor offenses are longtime legal permanent residents of California, with deep connections to their families and communities.” These concerns have also inspired other states, including Illinois, Nevada, and Oregon, to make the same one-day change to their misdemeanor laws.

Another cutting-edge California criminal justice reform requires prosecutors to consider immigration consequences in the plea bargaining process. Prosecutors have enormous discretionary power. For immigrants, those discretionary decisions can result in deportation, which is often the harshest aspect of the penalty. California’s Assembly Bill 1343, passed in 2015, addresses this dynamic by requiring prosecutors to consider the detrimental immigration consequences of their plea offers as one factor in reaching a “just resolution” in every case. The law promises to reduce the overall number of conviction-based deportations by requiring prosecutors to consider whether the equities of their cases call for immigration-safe plea outcomes. The same legislation also requires defense counsel to give their clients “accurate and affirmative advice about the immigration consequences of a proposed disposition” and to “defend against those consequences.” This complementary provision of the law will help to ensure that immigration issues are in fact raised with the prosecuting authority.

A third important area of recent reform limits local participation in certain types of federal immigration enforcement. Scaled-up deportation efforts rely heavily on local officials’ cooperation with “immigration detainers” — requests to local jails to hold immigrants so that Immigration and Customs Enforcement can initiate deportation proceedings. However, as the Attorneys General of California and five other states agree, compliance with these civil detainer requests is voluntary, meaning that local governments are not required to honor them. In addition, several courts have found that these detainer-based detentions, which are not accompanied by a judicial warrant based on probable cause, violate the Fourth Amendment. In passing the Transparency and Responsibility Using State Tools Act (“TRUST Act”) in 2013, California prohibited local jails from holding noncitizens on immigration detainers unless convicted of certain serious or violent felonies. A supplementary state law passed in 2016, the Transparent Review of Unjust Transfers and Holds (TRUTH) Act, added crucial procedural protections, including a requirement that immigrants receive a Miranda-type warning before being questioned by immigration agents. Just last month, the California legislature passed the California Values Act. This law, which has been described as creating a “sanctuary state,” takes new steps to protect immigrant communities by prohibiting the use of state funds to transfer individuals from local custody for immigration enforcement purposes, unless accompanied by a warrant or probable cause determination from a judge. The law also restricts the use of law enforcement personnel in joint task force programs with federal immigration enforcement. In passing the California Values Act, the California legislature found that such reforms are necessary “to ensure effective policing, to protect the safety, well-being, and constitutional rights of the people of California, and to direct the state’s limited resources to matters of greatest concern to state and local governments.” Governor Jerry Brown affirmed that the California Values Act will bring “a measure of comfort to those families who are now living in fear every day.”

In August, California became the first state to sue the Trump administration over its attempts to force state and local law enforcement agencies to participate in federal immigration enforcement. As I and other legal experts argue in a forthcoming article, laws like those passed in California that disentangle state and local criminal justice systems from federal immigration enforcement serve many important policy functions, including strengthening community trust in policing and safeguarding against racial profiling.

California’s ongoing revisions to its criminal law and procedure provide a partial blueprint for resisting Trump’s mass deportation plans. California and other states seeking to craft sanctuary laws should continue to explore additional criminal justice reforms that will protect against unjust deportations, make all communities safer, and promote a more diverse and inclusive society for all.

This blog post builds on ideas developed in recent article, Criminal Justice in an Era of Mass Deportation: Reforms from California, 20 New Crim. L. Rev. 12 (2017).