Immigrant Protective Policies in Criminal Justice
95 Texas Law Review 245 (2016)
UCLA School of Law, Public Law Research Paper No. 16-52
Criminal Justice, Borders and Citizenship Research Paper No. 2873931
80 Pages Posted: 23 Nov 2016 Last revised: 28 Aug 2017
Date Written: 2016
The increasing focus of federal immigration enforcement on persons accused of crimes has hastened the creation of local criminal justice policies that govern the treatment of immigrants. In this Article, I report my findings from public records requests sent to prosecutor offices, city police departments, and county sheriffs in four large counties in California: Alameda, Los Angeles, Santa Clara, and Ventura. I analyze the text of three types of written criminal justice policies that emerged in every county: (1) police policies that prohibit inquiry into immigration violations during routine policing; (2) prosecutor policies that consider deportation penalties in negotiating pleas for low-level offenders; and (3) sheriff policies that reject certain federal requests to detain immigrants in their jails for deportation purposes. All of these policies function to protect at least some immigrants who come into contact with the criminal justice system from possible deportation. Yet, close analysis of these policies — which I refer to as “immigrant protective policies” — also reveals key differences in how these protections are structured and, hence, in which immigrants are covered by these policies. In short, some policies are more protective than others.
This Article argues that the protective gaps in these local policies have evolved against a backdrop of an incomplete set of organizing principles for advancing such policies. The justifications most often put forth by advocates, scholars, and policymakers in favor of protective criminal justice policies are community policing, immigrant integration, and budgetary constraints. Each of these justifications, while important, has supplied only a partial framework for formulating criminal justice policy that decouples local policing and prosecuting from federal immigration enforcement priorities. To help guide the development of next-generation protective policies, which will be particularly crucial to pro-immigrant states and localities during the administration of President-elect Donald Trump, this Article explores an alternative justification for immigrant protective policies — immigrant equality. Immigrant equality seeks to insulate noncitizens from harsher forms of punishment, racial and ethnic profiling, and other substantive and procedural distortions that immigration enforcement imposes on criminal cases involving noncitizens. To illustrate how adherence to a norm of immigrant equality would further refine and shape next-generation protective policies, this Article applies the approach to current criminal justice issues facing localities around the country.
Keywords: Immigration Enforcement, Criminal Justice, Sanctuary Cities, Crimmigration, Equality, Discrimination, Detainers, Plea Bargaining
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