Tuesday, May 19, 2015

Prop 47: Are Immigrants More Harshly Punished?

Guest blogger: Darcy Morris, third-year law student, University of San Francisco

The criminal justice system’s overlap into immigration law can be confusing, particularly when looking at the effect of a criminal conviction on an immigrant.  While criminal convictions have negative consequences in general, the immigrant population suffers collateral consequences as well.  The consequences are designed to prevent outsiders from committing crimes in the United States and remove them from our country without allowing re-entry if they do.  Proposition 47 has changed the criminal justice system in many ways with objectives of safer communities and maximization of alternatives to incarceration for nonviolent crimes.  Yet, in spite of a large immigrant population, many of whom get incarcerated and deported, California’s Prop 47 fails to include any immigration driven protections.  The proponents of Prop 47 missed an opportunity to do more for immigrants who may face deportation for certain crimes. Because the proponents did not incorporate the effect on immigrants into their thinking, Prop 47 may be worse for immigrants. The proponents were trying to make sure that sex and violent offenders would not get extra protections, but that everyone else should be able to benefit equally from the new protections.  However, because there is no language about immigrants, some unforeseen consequences may happen, and more arrests/deportations may happen as a result. To understand how Prop 47 legislation intertwines with immigration law, a general understanding of both is necessary.

On November 4, 2014, California voters passed Prop 47, also known as the “Safe Neighborhoods and Schools Act.” Prop 47 modifies the punishment for many nonviolent crimes from a felony to a misdemeanor.  The legislation is rooted in the reality of prison overcrowding where large portions of inmates are non-serious, non-violent offenders rather than violent offenders.  In order to reduce prison populations, Prop 47 serves to provide lesser punishments for low-level offenders by making certain crimes straight misdemeanors.  Additionally, Prop 47 creates a fund to support education in schools on crime prevention, trauma recovery services for victims, and mental health and substance abuse treatment to prevent recidivism.   Prop 47 is accompanied by the recently passed Senate Bill 1310 (SB1310) which decreased the maximum sentence for misdemeanors from 365 days to 364 days for convictions after January 1, 2015.  Yet neither Prop 47 nor SB1310 have any specific language addressing immigrants or immigration.

Prop 47 alters felonies to misdemeanors for some property crimes and drug crimes.  Property crimes include commercial burglary, forgery, non-sufficient funds checks, grand theft, possession of stolen property, and petty theft with a prior where the value taken does not exceed $950.  Prop 47 also changes the sentence for theft and shoplifting from one year to just six months.  The drug possession crimes include possession of a heroin, cocaine, concentrated cannabis, methamphetamine, mushrooms, and PCP.  However, prop 47 disqualifies anyone from its benefits who is a sex registrant or who has been convicted of a sexually violent or other serious, violent offense.

While Prop 47 does not specifically reference immigration law, two main types of crimes that are red flags for immigrants are affected--crimes involving moral turpitude and aggravated felonies.  A crime involving moral turpitude (CIMT) is defined as a “reprehensible” act that demonstrates reckless or immoral behavior.  CIMT’s typically are crimes causing great bodily injury, theft crimes involving fraud, and lewd or sexual intent crimes.  A lawful permanent resident (LPR) can be deported with just one conviction of a CIMT if the imposed sentence length is 365 days when committed within five years of admission to the United States.  Two CIMT convictions automatically make noncitizens deportable regardless of the length of the sentences.  Also, a CIMT eliminates “cancellation of removal” relief for undocumented immigrants, a form of relief that allows undocumented immigrants who have resided in the United States for ten years to apply for LPR status.  Any CIMT conviction causes inadmissibility except in the case of misdemeanors with no more than 6 month imposed sentences.  An aggravated felony under immigration law is a criminal conviction from a set of crimes when the imposed sentence is 365 days or more, although some crimes are aggravated felonies regardless of the sentence.  Surprisingly, aggravated felonies do not have to be actual felonies or even serious felonies; they can be minor felonies and even minor misdemeanors if the sentence is a year or more.  Even more detrimental than a CIMT, a single aggravated felony causes a noncitizen or even a LPR who just has yet to be naturalized to be deportable, and it bars almost all types of deportation waivers.  Common aggravated felonies include theft, receiving stolen property, burglary, and forgery.  

Putting all of that information together, defense attorneys are armed with new approaches to avoid CIMT or aggravated felony convictions.  Easiest to see is SB1310 preventing deportation for an immigrant’s first and only misdemeanor because it cannot be an aggravated felony, nor will it qualify as a deportable CIMT.  Another obvious benefit to immigrants is that Prop 47 is retroactive, meaning even convictions prior to November 4, 2014 may be petitioned for re-designation.  Reduced misdemeanors under Prop 47 will result in a sentence of under a year with SB 1310.  With reduced sentences, immigrants may have newfound access to education, work authorization, housing, drug or alcohol treatment programs, and other social services.  Also, President Obama’s November 4, 2014, enforcement objectives classify felony convictions as the number one priority for deportation, so with reduced sentences immigrants may have a better opportunity for temporary relief to acquire citizenship.

While these changes in the law appear to provide significant help for immigrants, many problems still exist.  Prop 47’s newly created shoplifting offense has only a 6-month sentence and was created to make non-violent theft charges result in lesser punishment than before.  But the elements of the new crime require “the intent to commit larceny,” and crimes with the intent to commit larceny are CIMTs.  This means that any non-citizen may want to plead guilty to the more serious charge of second-degree burglary because it requires the intent to commit larceny or any felony.  When the language of that element has "or any felony with it", it no longer requires the crime to be a CIMT because which aspect of that element is ambiguous, therefore avoiding a CIMT conviction where the language must be clear.  However, the burglary sentence would be over 6 months, although still 364 days thanks to SB1310, but the immigrant's record would have a burglary charge rather than a shoplifting charge.  Thus, non-citizens can face worse consequences than U.S. citizens for the same crime, regardless of whether they are undocumented or LPRs with Prop 47.

Even more distinct is the difference in a drug conviction for a noncitizen versus a citizen.  As mentioned earlier, Prop 47 does not reference immigration, and drug crime convictions remain severe, such that first minor drug offenses cause deportability and inadmissibility, and most aggravated felonies require mandatory detention.  Even without a drug conviction, an immigrant may face deportation for simply admitting to drug abuse or addiction, or when law enforcement “suspects drug trafficking.”  When a rehabilitation program can be an alternative to incarceration, some noncitizens are not eligible because of the substantial likelihood of deportation before completion of the program.  When a non-citizen’s conviction is dismissed upon completion of a diversion program such as rehabilitation, the conviction still exists under federal law and remains grounds for deportation.  Rather than giving drug users treatment, the law avoids the problem by sending the problem somewhere else.  

That is not to say criminal convictions for immigrants do not require or deserve some form of punishment.  But Prop 47 does not give serious or violent offenses any sort of special treatment and specifically disqualifies anyone with those convictions.  Non-citizens and citizens alike go through the same criminal process for those types of offenses.  However, the crimes that Prop 47 does reduce punishment for do not always give immigrants that benefit and many times will result in harsher criminal punishments along with immigration consequences including deportation and inadmissibility.  Deportation and inadmissibility can tear families apart, return immigrants to dangerous communities, and forbid any return to the life they had in the United States.

The drafters of Prop 47 may not have realized the significant problems drug crimes still pose for immigrants.  Similar to the unintended impact of the War on Drugs, Prop 47 may be counterproductive to its goals by unfairly penalizing immigrants.  The War on Drugs most heavily impacted minorities and resulted in the incarceration of a substantial percentage of the black population.  Law enforcement could arrest people for drug crimes with haste and with less accountability, motivated by financial incentives based upon the number of arrest made, regardless of the crime.  The length of time necessary to complete a non-violent drug arrest contrasts greatly with the time necessary for a rape or murder arrest, so officers racked up arrests in low-income minority communities with ease.  Similarly, immigration laws allow law enforcement along the border a similar ability to arrest someone.  Both drug use and undocumented immigrants are stigmatized by society as something we do not like or want in our country.  Combining the two stigmas creates a recipe for disaster for immigrants.  Because Prop 47 does not address immigrants convicted of the reduced crimes, immigrants will likely be targets for law enforcement with much harsher consequences than non-immigrants, even if they are here lawfully.  While Prop 47 is a good start to reducing the prison crisis and the War on Drugs, immigrant protections must be incorporated.



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