Illegal immigrants get off easy in Baltimore

Baltimore's State's Attorney's Office now has two sets of rules: one for citizens and legal immigrants, and one for illegal immigrants. In an April 27 memorandum, Marilyn Mosby's office "instructed prosecutors to think twice before charging illegal immigrants with minor, non-violent crimes in response to stepped up immigration enforcement by the Trump administration."

This follows assurances from Commissioner Kevin Davis of the Baltimore Police Department (BPD) to the city's immigrant community that officers don't "care about your immigration status."

Ambivalence toward the federal government is not new in Baltimore. These actions take that ambivalence to a new level that is inconsistent with requests Mayor Catherine Pugh has made of the Trump Administration. In December, Mayor Pugh met with newly elected President Donald Trump at the Army-Navy game to request infrastructure funding from the incoming administration. She subsequently has asked for federal help with housing and education, and sought the FBI's assistance in tackling the city's high crime rate.

Federal assistance, in fact, was critical to resolving one of the city's most high-profile crimes, the killing of 3-year-old McKenzie Elliott, who was hit with a stray bullet while playing on her front porch. Days after the shooting, then-BPD Commissioner Anthony Batts vowed that an arrest would be made within a week. Three years later, however, it was then-Maryland U.S. Attorney Rod Rosenstein who announced federal charges against the alleged shooter. (Mr. Rosenstein was sworn in last week as the Department of Justice's deputy attorney general.)

The city's high crime rate and its admitted dependence on federal help in responding to it make the positions of the BPD and the Baltimore City State's Attorney's Office with respect to illegal immigrant criminals all the more inexplicable. Why would the Trump administration agree to the city's request for more federal criminal assistance if the police and prosecutors go easy on illegal immigrant criminals? Unlike the funding in the federal case addressing the president's executive order on sanctuary cities, the assistance requested by Mayor Pugh is purely prospective, and the president could simply say "no" without legal ramifications.

In addition, the position of the state's attorney's office will likely open it up to new charges of discrimination. As The Sun reported in August, a Justice Department investigation found that BPD "supervisors have issued explicitly discriminatory orders." What Baltimore City defense attorney representing a citizen charged with "a minor, non-violent" crime of the sort described in the state's attorney's memorandum wouldn't claim discriminatory practices had led to the charges against his client? Even if unsuccessful, such claims will further bog down an office that has lost of dozens of courtroom prosecutors in the past two years.

There also is a disconnect between the position of the BPD, which has stated it won't ask about the immigration status of arrestees, and the state's attorney's policy of actively considering immigration status in bringing charges. This inconsistency has at least been recognized by the BPD, which has said it won't take citizenship status into account when investigating crime. As BPD spokesman T.J. Smith stated: "That would put us right back in the situation where we are making a judgment based on someone's immigration status. ... We're not going to do that."

It is not even clear why the state's attorney decided to adopt this new policy. Although The Sun reports the prosecutor's office is issuing this guidance "in response to stepped up immigration enforcement by the Trump administration," the current administration's policies are not that different from the policies of the Obama administration, at least up until Homeland Security Secretary Jeh Johnson issued his Nov. 20, 2014 prosecutorial discretion memorandum , or from what the law has always required. "Stepped up immigration enforcement" is really just "immigration enforcement."

The BPD and Baltimore prosecutors constantly complain, as they did in the Elliott case, that witnesses to crimes in the city won't come forward. In essence, they want Baltimore residents to put their respect for the rule of law ahead of their own personal safety. The state's attorney's office memorandum, and Commissioner Davis' statements, however, reflect the same disrespect for the law that they themselves decry.

Immigration laws once allowed sentencing judges to issue Judicial Recommendations Against Deportation (JRAD), to prevent what was then known as "Immigration and Naturalization Service" from using certain criminal convictions for deportation actions. JRADs were repealed in 1990, however, calling into question whether Congress believes courts, let alone local prosecutors, should have a say in removal decisions.

Baltimore is on track for more than 300 murders this year. While the city faces many criminal challenges, the removal of too many criminals is not one of them.

Andrew Arthur (ara@cis.org) is a resident fellow in law and policy at the Center for Immigration Studies; he lives in Baltimore.

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