Prosecutors Must Be Protectors
Just last month, Denver City Council members unanimously approved important revisions to the city code that will protect undocumented immigrants from President Trump’s massive deportation plan. Under federal law, non-citizens frequently face mandatory deportation if they face a potential sentence of one year or more. Many petty crimes now will carry a maximum sentence of sixty days and will have no fine attached to them. These changes are necessary — sentences were already too high for these non-violent crimes — and other cities in Colorado should pass similar reforms. The Denver Police Department has also taken measures to protect our most vulnerable citizens, refusing to aid federal authorities in arresting undocumented Coloradans.
But if Denver and other places in Colorado are truly going to be sanctuaries, then prosecutors must also commit to reforming the system. As a recent report by Harvard Law School’s Fair Punishment Project describes, under President Trump’s deportation plans, even those merely arrested for a low level offense are at risk of deportation. Prosecutors must therefore drastically change how they handle low level cases, and even decline to prosecute certain types of non-violent offenses, to truly protect undocumented immigrants.
In Denver, local ordinances prohibit “aggressive panhandling,” bathing in streams, camping, and “sitting or lying down in the public right of way.” Boulder, Aurora, and Colorado Springs have similar laws. This criminalization of poverty does little to materially improve public safety. Lying on a public right of way is most often a sign of homelessness, for example, and not criminal behavior. But these laws open up the city’s most vulnerable residents to unnecessary contact with the criminal justice system. Prosecutors should refuse to enforce them.
As the first state with the first city to legalize marijuana, Colorado is in some ways light years ahead of other places in its treatment of drug possession within the criminal justice system. But drug possession is often a sign of addiction, not criminal propensity. Prosecutors should either not prosecute or agree to pre-plea diversion and treatment programs for most drug offenses, which will help undocumented immigrants avoid a criminal charge with a deportable offense.
Prosecutors should also decline to ask for cash bail in less-serious offenses. As has been well-documented, poor people are often unnecessarily held in jail for long periods awaiting trial because they cannot make bail, even though they pose little to no risk to public safety. Undocumented immigrants are particularly likely to be cash-poor and therefore unable to make bail. But if they sit in jail awaiting trial, not only will they likely lose jobs and much needed income, they also become sitting ducks for ICE.
Local prosecutors should also factor immigration consequences into their charging decision-making. If choosing between charging an offense that carries a sentence of more than one year — which will quickly trigger deportation — and one with a sentence that is more appropriate to the offense, prosecutors should elect the more reasonable sentence.
There can be no doubt that the Trump presidency represents a very real threat to undocumented immigrants across the country like we have never seen before, with ICE arrests up 37.6 percent during the first 100 days of Trump’s presidency. Prosecutors must join the moral chorus sounding the alarm and working to protect our most vulnerable populations in Colorado. And they must do so not just with words, but with serious actions. Without prosecutors’ aid and buy-in, President Trump and his ICE agents can and will have a field day in our home state.
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Violeta Raquel Chapin is a Clinical Professor of Law at the University of Colorado Boulder. She served seven years as a trial attorney with the Public Defender Service for the District of Columbia (PDS).
The views and opinions expressed in this article are Professor Chapin’s and do not necessarily reflect the views of the Fair Punishment Project.
