This article was published in partnership with the Marshall Project
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. Many of these policies are being implemented by the so-called progressive prosecutors who were recently elected, as part of an effort to reassure their foreign-born constituents that the local DA isn't acting in lockstep with federal immigration officials.
"Now that we realize the heavy arm of immigration consequences, it's requiring new thinking," said Miriam Aroni Krinsky, a former federal prosecutor and the founder of Fair and Just Prosecution, a nonprofit that supports reform-minded DAs. "They're having to revisit pleading, sentencing and even post-conviction relief for those who are non-citizens."
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 US. 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. "I think this policy is about fundamental fairness. Deportation is a drastic result for people who have pled to very low-level offenses who never faced jail in the first place," Gonzalez said. "It doesn't prevent the government from deporting them, but it shows how serious we thought the case was in Brooklyn."
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 non-citizens 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.
For undocumented immigrants, these changes are still not a guarantee. Trump's enforcement priorities make clear that any immigrant without legal status is at risk of deportation. But certain offenses can make them ineligible for most kinds of relief from removal and make them a higher priority for ICE. And for legal immigrants, a more serious crime could cause them to lose their status or block them from future citizenship.
These adjustments in local policies have received some criticism, particularly at the federal level. In a speech in Long Island in April, Attorney General Jeff Sessions criticized offices like Gonzalez's. "It troubles me that we've seen district attorneys openly brag about not charging cases appropriately under the laws of our country, so that provides an opportunity for individuals not to be convicted of a crime that might lead to deportation," he said. "That baffles me."
The main critique is that prosecutors are going easier on immigrant defendants than they are on citizens. "I think the argument to be made, and there's some validity to it, is why would you treat an undocumented member of our community better than an American citizen?" said the Denver district attorney, Beth McCann, who is still deciding whether to implement a similar policy. "We need to be careful that we're not giving better deals."
The Santa Clara County, California, district attorney, Jeffrey Rosen, said that's why his office makes sure that any arrangement offered to an immigrant is an option for citizens as well. Rosen implemented his office's policy back in 2011. "We've always taken into account collateral consequences like losing a job or scholarship," Rosen said. "I didn't think it was fair to say we'll consider some consequences but not others."
These considerations only apply to immigrants charged with relatively minor crimes. The DAs have drawn a clear line on so-called "violent" offenses. "We don't think its a disproportionate punishment for rapists and robbers to be deported after they serve a prison sentence," Rosen said.
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Trump's policies on immigration have put prosecutors everywhere in a difficult position. They want to persuade immigrants in the cities they serve that they're not working for ICE, and to encourage vulnerable people to report crimes and cooperate with investigations and trials. But that's a difficult message to get across as ICE continues to arrest people at courthouses—including victims. Multiple cities have already reported that some victims have been afraid to come forward, particularly in domestic violence cases. In response, prosecutors have tried to reach out to immigrant communities, holding town hall meetings and creating hotlines to report fraud, as Kim Foxx did in Chicago.
But it's not just about victims. Considering the immigration consequences for defendants has been another way prosecutors are trying to rebuild that trust. "It became clear to me that in order to have real trust in the system, they needed to know their loved ones would be treated fair when they were accused of a crime," said Gonzalez, the Brooklyn district attorney.
This article was originally published by the Marshall Project, a nonprofit news organization that covers the US criminal justice system. Sign up for the newsletter, or follow the Marshall Project on Facebook or Twitter.