Police and Prosecutors Should Do More to Protect Immigrants
Overwhelmingly, “undocumented” residents are referred to by the current administration In Washington as “illegal aliens” and identified almost exclusively as Latinos. There is little, if any, subtlety in this regard. The administration’s policy is undeniably race based.
Fortunately, New York has been a leader for years in taking steps to protect undocumented immigrants living within the city. It has been a self-identified “Sanctuary City” since 1989, and local laws have been on the books for several years limiting local cooperation with Immigration and Customs Enforcement (ICE) officials. Mayor Bill De Blasio has been outspoken in his opposition to the President’s deportation policies, saying that the city has no intention of cooperating with federal immigration authorities to enforce immigration law or help them detain undocumented residents. But as a former police officer with the New York City Police Department, I know there is much more that city and law enforcement leaders can and should legally, practically and morally do.
While New York’s political leadership in this area has been critical, it is also important to remember that they are not the only change-makers on this issue. Police and prosecutors also have a crucial role in ensuring that undocumented residents are protected. A recent report by Harvard Law School’s Fair Punishment Project shows that one of the most important factors in protecting undocumented residents in any city is re-evaluating criminal justice policies and how police and prosecutors direct residents into the system. Jurisdictions everywhere must commit to keeping people out of the system for minor offenses that don’t materially endanger public safety, such as low-level drug possession, traffic violations, and violations of “vagrancy” laws, such as loitering or sleeping in public.
It is more important than ever that local law enforcement agencies use their wide discretion in determining what offenses to prioritize. First and foremost, the city should act to eliminate any and all local ordinances that criminalize the effects of homelessness and poverty. This is not to say that homelessness and its attendant quality of life concerns for all should be ignored. In 2016, the city passed the Criminal Justice Reform Act, which created a civil option for low-level offenses including “being in a park after hours,” littering, and public urination. New York City officers now have the option to bypass the criminal justice system in dealing with these minor infractions; they should utilize it at every opportunity. For the undocumented, any kind of law enforcement contact could significantly increase risk of deportation.
Prosecutors should also actively factor immigration consequences into decisions they make regarding the charging of certain non-violent, low-level offenses. It is not uncommon for prosecutors to take circumstances unrelated to a crime into account when they decide how to proceed with a case; for example, a prosecutor might show leniency to a defendant who has valuable information. New York’s prosecutors should decline to prosecute minor offenses when it may open a defendant up to an unnecessary risk of deportation.
Prosecutors also have the discretion to stop asking for cash bail. Cash-bail policies are the norm almost everywhere in America, but they often result in people without financial resources being held in custody for long periods of time. Undocumented immigrants are more likely to be cash-poor, and the consequences of them being held in jail unnecessarily could be disastrous, as detention makes them much more vulnerable to being deported by ICE. Studies show that bail does not measurably improve public safety, and several jurisdictions, like Washington D.C., have already eliminated cash bail pending trial. In 2016, Mayor de Blasio announced that the city would move towards reliance on “supervised release” programs for low-risk offenders, saying that “no one should be in jail simply because they cannot pay bail.” This is an encouraging step towards meaningful bail reform, and local prosecutors should stop asking for bail in the majority of cases.
New York has long been at the forefront of “sanctuary city” discussions, but it should strengthen its commitment in the face of the increased threat posed by the new administration. Law enforcement and prosecutors’ offices have a vital role to play in this fight, and conscious reform of the criminal justice system is one of the most important things that the city of New York can do to protect all its residents. New Yorkers should collectively say “no” to the new administration’s policies, because at their core, those policies are immoral!
Edgar De Leon has worked as a Detective-Sergeant and an attorney for the New York City Police Department (NYPD). The views and opinions expressed in this article are Mr. De Leon’s and do not necessarily reflect the views of the Fair Punishment Project.