This CQ op-ed from former prosecutor Robert Johnson (no, he’s not the crossroads guy) touches on the often bizarre structural issues prosecutors and judges face when they handle immigration cases. Too often, their hands are tied by punitive laws created by opportunistic politicians. As Johnson makes clear, there is little room for common sense and compassion in the present system. It would be tragic if, in the name of compromise, immigration reform reduced the discretion of judges and prosecutors still further. AGB
By Robert Johnson
May 16, 2013
We are on the cusp of finally realizing federal immigration reform in the United States. As our nation’s lawmakers debate this much anticipated bill, it is essential that we are diligent in ensuring that all aspiring citizens have a fair shot at the pathway to citizenship. There are those who believe that anyone with a criminal conviction, no matter how minor or old, should be shut out of this process and deported. I strongly disagree.
As a former prosecutor and past president of the National District Attorneys Association, I spent much of my life trying to put away people who I thought were a danger to society. This is the role society created for the criminal justice system. But the criminal justice system has become increasingly entangled with our broken immigration system, and the reform efforts of today must address the persistent conflicts between the two. The criminal justice system, not the immigration system, should determine who is a public safety risk.
I have watched as immigrants faced unequal treatment and more severe penalties in criminal court than their American-born counterparts, undermining the integrity of the criminal justice system and prosecutors’ ability to do our jobs. For example, while those born in the United States could sometimes have their cases dismissed upon successful completion of a treatment program, many immigrants never have that chance.
I would have assumed that mandatory detention and deportation would result from only the most heinous crimes, but I soon learned that these drastic consequences could be triggered by offenses termed “aggravated felonies” in the immigration system that are often neither aggravated nor felonies under criminal law. They include acts such as possessing marijuana, shoplifting or getting in a fight at a sports game.
The laws often require deportation for a long list of these type of offenses without any consideration of how long ago it happened, or what the individual has done with his or her life since. As a result, many immigrants are deported without a judge exercising discretion to consider how many years they have lived in the United States, their family ties or whether they started a business, served in the military or otherwise contributed to their communities.
Given the reality of these extreme laws, prosecutors and judges often feel forced to manipulate the justice system to avoid the even harsher immigration consequences that would result in an individual’s banishment from the United States. Too often immigrants feel forced to contest criminal charges because pleading guilty, which often results in a more minimal criminal sentence for citizens, would guarantee them mandatory detention and deportation. I have felt obligated to accept different pleas or amend the charges I brought against someone because I knew that mandatory detention and deportation would be unjust. This doesn’t make sense from a criminal justice perspective.
Reform legislation must amend these harsh criminal bars and ensure that so-called aggravated felonies no longer trigger mandatory detention and deportation. There should be no additional aggravated felony offenses in the reform bill. It is inappropriate and unjust for immigration penalties to far surpass the criminal sanctions for these offenses.
The criminal justice system would work more efficiently and justly if prosecutors and defendants knew that, in these cases, immigration judges would at least be able to consider all the individual factors, including U.S. military service, rehabilitation and family ties, to determine if it is in the best interests of the United States to let someone remain in the country. Protecting and expanding the conditional waiver in the current bill would allow this to happen; the waiver must be included in the final legislation to ensure fundamental due process safeguards.
We work to combat crime in immigrant communities and rely on their help in prosecuting crime in and out of their communities. Their fear of being funneled into a harsh and unreasonable immigration system deters them from engaging with law enforcement because of the constant threat of deportation. This reality makes the criminal justice system less effective and hinders our ability to solve crimes and hold perpetrators accountable.
As a law enforcement officer who has spent a lifetime working to pursue justice and protect the public, I implore Congress to implement immigration reform that will uphold and ensure fundamental American values of fairness and due process.
Robert Johnson served as Anoka County, Minn., attorney from 1983 through 2010 and is the former president of the National District Attorneys Association and the Minnesota County Attorneys Association.