GEORGE GASCÓN’S PLAN TO ENSURE RESOLUTION PARITY FOR THE UNDOCUMENTED
Immigrants play a profound role in shaping the character of life in Los Angeles. With vast economic and cultural contributions that touch every facet of Angeleno life, immigrants enrich our community with diversity and dynamism. It is imperative that our criminal justice system be mindful of how enforcement actions can have outsized–indeed, unintended and arbitrary–effects on defendants and their families, based on their immigration status. Particularly during this politically charged environment, it is essential that immigrants are not subject to double suspicion, double punishment, or a deprivation of due process. This is not to grant leniency to immigrant offenders, but rather to mitigate punishments that can end up being far harsher than what the law was designed to mete out. Public safety for everyone in Los Angeles County is enhanced when immigrants’ rights are respected and upheld.
Through my personal and professional background, I have first-hand understanding of the challenges immigrants face in interactions with law enforcement. My views on the role of police–and the importance of constitutional rights for immigrants–have been informed by an early childhood wherein I immigrated from Cuba and grew up in Cudahy. For 28 years as a policer officer with the LAPD, I walked foot beats in East and South LA, and am familiar with the challenges of building trust with disadvantaged communities. As police chief in Mesa, Ariz., I stood up to Joe Arpaio’s political grandstanding, and refused to cooperate in immigration raids which chilled relations with immigrant communities and deterred cooperation from victims and witnesses.[1]
As San Francisco District Attorney, I implemented an “immigration escort policy” that assigned victims’ advocates to escort fearful undocumented witnesses or victims through the courthouse. I also helped to pass a law that does not allow the prosecution or defense in a criminal case to ask questions about a person’s immigration status in public court, without a judge’s prior permission (SB 785). My office worked diligently to obtain immigration relief for hard-working, contributing non-citizen members of our community, keeping them and their families safe from sudden deportation.[2]
With a broken immigration system and an absence of federal leadership on reforming it, we must find a way to uphold the law while also treating immigrants in a way that is aligned with our values and is constructive to public safety. As Los Angeles District Attorney, I will advocate for policies and processes that bring us toward our vision of healthy communities and a criminal justice system that is compassionate, even-handed and effective.
Gascón’s Approach to the Justice-Involved Undocumented Population
George Gascón believes in an immigration-informed prosecutorial approach. Immigration status can have a disproportionate adverse impact on noncitizen defendants because of federal immigration law implications. A core duty of prosecutors is to ensure that the punishment fits the crime. As such, it is incumbent upon the prosecutor to be aware of and mitigate collateral consequences, particularly when they are more severe than the punishment for the crime itself. Indeed, in Padilla v. Kentucky 130 S.Ct. 1473 (2010), the U.S. Supreme Court ruled that immigration consequences of a conviction for immigrants can be profound and warrant consideration by the prosecution as well as the defense.
Many low-level, nonviolent offenses automatically trigger deportation as a “mandatory minimum” punishment. Defendants are precluded from having an immigration judge consider their individual circumstances, including how long they have been in the country, the impact of deportation on their family, or military service. This pertains to any offense defined under immigration law as an “aggravated felony,” which could be a shoplifting offense or the sale of counterfeit DVDs.[3]
A decades-old conviction for which the noncitizen has already been punished or even a plea that is later dismissed can still stymie their path to citizenship, determine whether they can remain in the country, or lead to inadmissibility. That can tear families apart and lead children to be raised without a parent.
Local criminal justice actors must be careful not to become part of a pipeline to deportation in a dysfunctional immigration system. The district attorney’s office must factor in severe collateral consequences in charging decisions, plea negotiations, and use of diversion programs. The DA must also strive to limit unnecessary exposure to immigration enforcement.
An immigration-informed approach includes working with defense attorneys to obtain a defendant’s immigration status–without requiring onerous proof or documentation – and implementing training programs to increase awareness of immigration law, with the goal of equipping prosecutors to exercise discretion in achieving immigration-neutral charges and plea bargaining. The basic principle guiding this approach is that the full range of punitive consequences – both direct and collateral–should be roughly equivalent for citizen and noncitizen offenders.
Prosecutors can charge alternative dispositions that are similar in type of offense with punitive consequences in line with citizen offenders. For example, while a single DUI offense can trigger immigration enforcement proceedings, lower-level DUIs, known as a “wet reckless,” have fewer immigration consequences.[4] To obtain and evaluate facts of each case, defense attorneys should be permitted to request office hearings to present evidence off the record.[5]
As Los Angeles District Attorney, Gascón will work to increase the use of diversion programs as well as pre-arrest and pre-plea diversion programs. Diversion programs often require defendants to plead guilty before participating. Even though participation results in having the plea dismissed, federal immigration enforcement could still use the admission of guilt as grounds for deportation.[6][7] Pre-arrest and pre-plea diversion programs that leverage community groups and emphasize treatment services have been shown to be more successful in addressing the root causes of low-level offenses, which are often tied to poverty, unauthorized immigration status, mental health and substance abuse issues.
By expanding their use, we can avoid immigration consequences while advancing public safety interests. Such programs include the Administrative Citation Enforcement program, the Neighborhood Justice Program, and the Los Angeles Diversion Outreach and Opportunities for Recovery program.[8]
Gascón will also reduce prosecution of low-level, “quality of life” offenses. While we expend considerable public resources in prosecuting these offenses, they yield questionable benefits to public safety and have limited deterrent effects. Offenses such as possession of small quantities of drugs, driving without a license, public urination, etc. are often correlated with low income brackets and homelessness and are more proportionally remedied via civil processes. Arrests and criminal charges often have outsized immigration ramifications, due to the booking and fingerprint sharing between local law enforcement and immigration authorities following an arrest.[9]
To satisfy critics who fear that taking into account immigration consequences amounts to “going easy” on noncitizens, it should be noted that prosecutors can require defendants to agree to more custody time or longer probation in exchange for modifications (e.g. loss of priorability), so as to achieve parity with similarly-situated citizen offenders. In addition, it is not always possible for prosecutors to vet the veracity of claimed immigration ramifications. However, if a defendant agrees to a restructured settlement that is more onerous, it is likely that fears of collateral immigration consequences are authentic.[10]
To limit exposure to immigration enforcement, Gascón will establish policies to minimize unnecessary time spent in jail. On an average day in 1Q20, there were more than 540 misdemeanor pre-trial arrestees in Los Angeles County custody, including 170 with arrests for drug, property, and vehicle code offenses.[11] This increases the risk of immigration enforcement, as the booking process allows Immigration and Customs Enforcement to identify and pursue immigrant detainees.
As he did when he was SFDA, Gascón will work to establish the DA’s office and courts as safe places for the immigrant community. To encourage reporting of crime and to maintain open lines of communication between immigrant communities and law enforcement, Gascón will ensure streamlined processes to assist with U-Visa applications, including in circumstances when immigrants’ labor rights are violated. In addition to assigning victims’ advocates, his staff were instructed to call the San Francisco Rapid Response Network, a group of nonprofits that can summon immediate legal help, if they discovered that federal immigration agents were in the courthouse. Many jurisdictions prohibit city resources from being used to assist federal civil immigration enforcement, and the California Values Act (SB 54), which prohibits law enforcement officers and prosecutors from sharing non-public personal information of noncitizens with federal immigration agencies, prosecutors should not facilitate immigration enforcement actions.
Immigration has become an extremely contentious political issue. Those of us who shape the criminal justice system must ensure that our focus remains unwaveringly on keeping our communities safe and that resolutions are administered justly.
[1] https://www.phoenixnewtimes.com/news/mesa-police-chief-george-gascn-stares-down-sheriff-joe-arpaio-6426648
[2] https://sfdistrictattorney.org/sites/default/files/Document/SFDA_Transformative%20Justice_George%20Gascón_2019.pdf
[3] https://fairandjustprosecution.org/wp-content/uploads/2018/02/ProsecutorRole.CRIMINALJUSTICE.Krinsky.pdf
[4] https://www.aclusocal.org/sites/default/files/aclu_socal_report_defend_la_appendices.pdf
[5] Ibid.
[6] https://www.ilrc.org/sites/default/files/resources/model_prosec_pol_prac_immig_issues-20181121.pdf
[7] https://www.thedailybeast.com/los-angeles-district-attorney-jackie-lacey-da-backs-off-hardline-stance-on-immigrants-caught-with-weed
[8] https://www.aclusocal.org/sites/default/files/aclu_socal_report_defend_la_appendices.pdf
[9] Ibid.
[10] https://libguides.law.ucla.edu/ld.php?content_id=13653091, libguides.law.ucla.edu/ld.php?content_id=13656338
[11] https://lasd.org/pdf/Custody%20Division%20Population%202020%20First%20Quarter%20Report.pdf