Prosecutorial discretion and immigrants

Attorney General Jeff Sessions has a point: Prosecutors shouldn't treat alleged criminals any differently based on their immigration status. In an ideal world, they would pursue charges and seek sentences based solely on the nature of the crime, not who committed it.

But the reason why some prosecutors, including Baltimore's Marilyn Mosby, are thinking twice when they charge immigrants with minor crimes is that the Trump administration's policies effectively violate that principle. Because President Donald Trump's Department of Homeland Security has issued new policies that prioritize the deportation of anyone who commits even a minor crime — or in some cases, is even accused of one — prosecutors find themselves unwittingly in a position of meting out punishments that are vastly disproportionate to the crime, not just for the accused but also for their families.

Last week, Baltimore Chief Deputy State's Attorney Michael Schatzow asked city prosecutors to consider the "collateral consequences" under the Trump administration deportation rules for "victim, witnesses, and the defendant" when deciding how to proceed with "minor, non-violent" criminal cases. The acting district attorney in Brooklyn, N.Y., has developed a somewhat more elaborate policy that amounts to the same thing: taking care in deciding what kinds of charges to pursue based on their potential ramifications in deportation proceedings.

In principle, this exercise of prosecutorial discretion is not unprecedented. Something very similar occurred in states with strict "three strikes" laws, most notably California. Some prosecutors made it a practice, and sometimes a formal policy, to seek guilty pleas on lesser charges that would not trigger stiff, mandatory minimum sentences for a third strike — for example, going after a trespassing charge rather than charges for selling a small amount of drugs. Former Los Angeles County District Attorney Steve Cooley made such a policy the centerpiece of his tenure, and though it may have cost him the Republican nomination to be that state's attorney general, his approach eventually laid the groundwork for a ballot initiative that overturned the worst elements of the law.

In the case of immigrants — and to be clear, we're not just talking about undocumented ones; immigrants with visas and even green cards who have brushes with the law can trigger deportation — the issue is not just whether prosecutors in one city or another think deportation is a harsh punishment for a minor, non-violent crime. It's also the prospect that members of the immigrant community, documented or not, will view those potential consequences as too severe and, as a result, stop cooperating with police and prosecutors. Local law enforcement officials in Baltimore are having a hard enough time building trust in the community; being viewed as an adjunct to Immigration and Customs Enforcement will only make matters worse. Prosecutors are right to be worried that failing to exercise some discretion in minor cases could hinder their ability to hold accountable those who do commit serious, violent crimes.

Those who advocate a hard-line stance on immigration may figure that those who are here illegally deserve what they get, whether they're caught for jaywalking or murder. But given that we can't deport everyone who is in the country illegally as a practical matter, and that we wouldn't want to on humanitarian grounds (not to mention economic ones), we're left to decide whether to prioritize those who pose a real danger to society or whether to develop a system that makes it less likely that we will be able to identify and successfully prosecute them.

In a speech last week, Mr. Sessions called the notion that Trump administration enforcement policies would make immigrants less likely to report crime "exaggerated" and noted that they could still call 911 to report crime anonymously. But it takes a lot more than an anonymous 911 call to successfully prosecute a violent criminal. Mr. Sessions went on to decry prosecutors who "openly brag about ... giving special treatment to illegal aliens."

But that's not what's going on. Prosecutors here, in Brooklyn and elsewhere are simply confronted with finding the most effective ways to keep their communities safe, and it would be irresponsible of them not to consider the broader consequences of their charging decisions. If Mr. Sessions wants to make America safe, he should advocate for a return to policies in which the federal government helped local officials get violent criminals off the streets, not a policy that helps them hide in the shadows.

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