Should an offender’s citizenship status impact prosecutorial charging decisions and how?

The question in the title of this post is prompted in part by a comment made by Attorney General Jeff Sessions in this speech given on Friday and in part by this news article out of Baltimore brought to my attention by a commentor.  Here is part of the speech from AG Sessions focusing on the how some prosecutors may now be concerning themselves with citizen status in charging:

We have also taken steps to end the lawless practices of so-called “sanctuary” jurisdictions, which make our country less safe.  I understand there are those who disagree.  But the American people rightly demand a lawful system of immigration. Congress has established a lawful system of immigration.

The Bureau of Justice Statistics just released a report showing that 42 percent of defendants charged in U.S. district court were non-U.S. citizens.  And according to the U.S. Sentencing Commission, in 2013, 48 percent of all deported aliens who were convicted for coming back to the United States illegally were also convicted of a non-immigration related crime.

And yet, I regret to say that we’ve seen district attorneys openly brag about not charging cases appropriately — giving special treatment to illegal aliens to ensure these criminal aliens aren’t deported from their communities.  They advertise that they will charge a criminal alien with a lesser offense than presumably they would charge a United States citizen.  It baffles me.

Regardless, no jurisdiction has a right to violate federal law, especially when that violation leads to the death of innocent Americans, like Kate Steinle.  As the President has made clear, our system is a system of laws, and we will be the Administration that ends the rampant immigration illegality.

And here is part of the Baltimore press article highlighting what AG Sessions seems to be talking about:

The Baltimore State’s Attorney’s Office has 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.

Chief Deputy State’s Attorney Michael Schatzow, in a memo sent to all staff Thursday and obtained by The Baltimore Sun, wrote that the Justice Department’s deportation efforts “have increased the potential collateral consequences to certain immigrants of minor, non-violent criminal conduct.” “In considering the appropriate disposition of a minor, non-violent criminal case, please be certain to consider those potential consequences to the victim, witnesses, and the defendant,” Schatzow wrote….

The Homeland Security Department issued memos in February saying any immigrant in the country illegally who is charged or convicted of any offense, or even suspected of a crime, will now be an enforcement priority.

Elizabeth Alex, a Baltimore regional director for CASA de Maryland, said immigrants and their relatives are afraid to engage in the court process, and Baltimore prosecutors are right to include immigration status as part of their consideration in how to handle a case. “Prosecutorial discretion exists in all kinds of cases, and it’s more education to [prosecutors] about the multiple factors that they should take into consideration as they proceed,” she said. “The consequences are different today than they were a year ago.”

U.S. Rep. Andy Harris, the lone Republican in Maryland’s congressional delegation, said it is “a real shame that the State Attorney’s office is unwilling to enforce the law against illegal aliens who commit crimes in the United States.”

“A vast majority of Americans believe that illegal aliens who commit crimes while here in the U.S. should bear the full brunt of the law, and be deported,” Harris said through a spokesperson.

The Justice Department declined to comment on the Baltimore memo. But in remarks Friday on Long Island, Sessions decried district attorneys who he said “openly brag about not charging cases appropriately — giving special treatment to illegal aliens to ensure these criminal aliens aren’t deported from their communities.”… The comments appeared to be in response to the acting district attorney in Brooklyn, N.Y., who earlier this week issued similar instruction to prosecutors there.

“We must ensure that a conviction, especially for a minor offense, does not lead to unintended and severe consequences like deportation, which can be unfair, tear families apart and destabilize our communities and businesses,” Acting District Attorney Eric Gonzalez said in an announcement Monday. Gonzalez went a step further, hiring two immigration attorneys to train staff on immigration issues and to advise prosecutors when making plea offers and sentencing recommendations “in an effort to avoid disproportionate collateral consequences.”

Mayor Catherine E. Pugh, who has sought to reassure immigrants that Baltimore is a “welcoming city” that will not check for proof of citizenship, declined to comment on the State’s Attorney’s Office memo. “Mayor Pugh will leave prosecution strategies and tactics to the State’s Attorney and her staff,” spokesman Anthony McCarthy said in an e-mail….

Police Commissioner Kevin Davis has expressed concern about immigrants not reporting crimes or cooperating with investigations because they fear repercussions related to their status, and has attended community meetings stressing that police won’t make immigration checks.  Schatzow, in the State’s Attorney’s Office memo, noted such concerns, saying fear of being deported could “impair our effectiveness in combating violent crimes and criminals.”

Notably, it has long been common in many settings for defense attorneys to seek and prosecutors to seriously consider downgrading certain charges from felonies to misdemeanors for some immigrant offenders in order to keep them from being subject to automatic deportation under applicable federal statutes.  I am uncertain whether AG Sessions is baffled by this practice, but I am certain that this practice is not confined to just a few jurisdictions.

That said, I do think the equation feels a bit different if and when we focus on foregoing certain criminal charges altogether for a certain class of offender because of the collateral consequences of deportation that could follow from any charges.  Though I would be troubled by deportation always serving as the de facto punishment for, say, low-level marijuana possession, I also would be concerned about the deterrent impact (as well as the optics) of policies and practices that make it easier for illegal immigrant offenders to avoid charges for certain classes of criminal wrong-doing.  Stated somewhat differently, given that citizens as well as non-citizens can and often do suffer an array of profound collateral consequences even when charged with minor, non-violent crimes, I would like to see prosecutors in Baltimore and everywhere else regularly instructed to consider “potential collateral consequences” for all offenders in all setting when making charging decisions.