Prosecutors are problem solvers who recognize the vital role that the community plays in protecting public safety, and we recognize our role in ensuring justice for all. This paradigm is referred to as community prosecution, in which prosecutors engage with victims and offenders to determine and remedy the underlying roots of criminal activity. In the decades since this model was established we have seen astounding successes in crime prevention.
However, community prosecution is undermined when we cannot apply these same principles to immigrants. Crime prevention and community safety demand a more nuanced approach, one that appreciates the ripple effect caused by mandatory deportations that leave communities depleted by unemployment and single parent households struggling to feed their families. The criminal justice system has been crafted to give us the leeway to consider these human factors when rendering punishment, and we ask that the Congress provide prosecutors with mechanisms that enable us to consider all negative outcomes.
Mandatory deportation does not allow judges or prosecutors an opportunity to consider whether or not a second chance is warranted. We must have the ability to judge which crimes merit which consequences. But under current immigration law, many deportable offenses known as “aggravated felonies” are often neither aggravated nor felonies in the criminal justice system, and in fact include misdemeanors and non-violent offenses. Under these laws, prosecutors and defense attorneys alike are concerned that they cannot ensure fair sentences and, consequently, achieving a proper plea with knowledge of all collateral consequences can be difficult.
Comprehensive immigration legislation must re-examine the category of crimes that constitute aggravated felonies under immigration law, and provide guidance to state and local prosecutors who are making plea bargain decisions with drastic immigration consequences every day. Legislation should consider a provision that allows immigration authorities and law enforcement to consider the humanitarian factors in every case before ordering deportation or denying a path to citizenship. Legislation must also amend the definition of “conviction” and “sentence” so that immigration laws reflect what these terms mean in state criminal court.
More and more localities are empowering prosecutors and judges with alternatives to criminal sentences that include drug and mental health courts, community service programs and other community diversionary initiatives. The programs offer effective alternatives to traditional prosecution, bringing offenders to justice in a manner that takes into account the unique circumstances of each defendant and their community. But, these effective options are moot if the immigration system demands mandatory no-bond detention and deportation for such a wide range of offenses, including misdemeanors and non-violent offenses.
If Congress enacts immigration reform that allows for a more holistic approach when dealing with defendants who are immigrants, then prosecutors and judges will no longer have to work in a vacuum and will have the opportunity to provide alternative prosecution methods that better serve community interest.
We ask lawmakers to seize this opportunity to create an immigration system that complements the criminal justice system.
Jansen is vice president of the Association of Prosecuting Attorneys and former prosecutor from Detroit.