Prop 36 could lead to more criminals being deported, immigrant advocates say

Public defenders and immigrant advocates warn that Proposition 36 could lead to more people convicted of crimes being deported if voters approve it Tuesday.

The initiative could also allow prosecutors to decide who can and cannot stay in the country, giving them the freedom to file more serious charges.

“It puts an enormous amount of power in the hands of prosecutors, especially because it takes the power out of the hands of immigration judges,” said Raha Jorjani, supervising immigration attorney at the Alameda County District Attorney’s Office. “The problem with Prop. 36 is that once an offense falls into a certain category, it takes away an immigration judge’s power to even hear a case.”

“This argument is a red herring because prosecutors already have a proven track record of mitigating unreasonable immigration consequences,” Greg Totten, co-chair of Yes on Prop 36 and CEO of the California District Attorneys Association, said in an email. Specific to Prop 36, the goal of the new treatment-mandated crime is to reduce drug-related crimes and strongly encourage individuals to seek treatment. Suspects can then have their charges dropped after treatment. This poses no risk of immigration consequences to those who complete treatment.”

“Greg Totten can’t have it both ways,” Jorjani said. “If he supports this proposal, he believes that nonviolent crimes such as shoplifting and drug possession should be classified as felonies.”

Proposition 36 would roll back parts of Proposition 47. This is an initiative voters passed a decade ago out of concern about the state’s high rate of incarceration. The new initiative would make it easier to charge suspects with crimes by allowing prosecutors to combine a number of thefts to reach the state’s $950 threshold. It also includes provisions allowing for more serious charges against certain repeat offenders.

A poll from the Berkeley Institute of Governmental Studies released Friday found Proposition 36 with a 60% to 25% lead among likely voters in California. This was the latest of a number of polls in recent weeks showing the country with an overwhelming lead, driven by voters’ renewed concerns about rising crime.

So far, the immigration issue has played little role in the debate over Proposition 36. But it could make immigrants who commit crimes more likely to be deported in two ways. Firstly, this would lead to more people being classified as criminals and therefore being removed as a matter of priority by immigration authorities. Second, it could lead to more people being held in criminal custody. This could make it easier for Immigration and Customs Enforcement to pick them up.

These factors could become even more important if Donald Trump becomes president again in Tuesday’s general election. Then-California Chief Justice Tani G. Cantil-Sakauye repeatedly criticized the Trump administration in 2017 for sending immigration agents to detain immigrants in California courthouses, sometimes when they appeared for felony or civil cases.

“Prop. 36 is an attempt to end two decades of reforming the criminal justice system by criminalizing vulnerable communities, including those who are not U.S. citizens,” said Bernice Espinoza, a removal attorney with Sonoma Immigration Services, in an email . “Members of the immigrant community will be at risk of mandatory deportation regardless of how long they have been in the U.S. or their ties to U.S. citizens or LPR family members. With more arrests, there will also be more detentions in ICE. There is no A nationwide system for these individuals to obtain pro bono legal advice, even if they have valid defenses in removal proceedings. Furthermore, this will put greater pressure on the limited pro bono services that exist.”

Jorjani said Proposition 36 would make it harder for people to claim protection under SB 54. California lawmakers passed the law in 2017, which bars law enforcement in the state from assisting with immigration enforcement unless a criminal meets certain conditions meets. A federal judge upheld that law despite an objection from the Trump administration.

She added that the initiative would lead to more people being found guilty of serious crimes eligible for deportation. First, it could lead to people being sentenced to a year or more for shoplifting, leaving them vulnerable to deportation even if they don’t have to serve that time. It could also allow more people to be deported on drug charges if they have certain prior convictions.

Jorjani said this would mean that an immigrant convicted of a serious crime in the US would not have the opportunity to claim that he faces persecution or death if he returns to his country of origin.

“With only one serious crime to your name, you do not have the opportunity to apply for asylum,” she said. “You don’t even have to apply.”