City & State | Criminal Justice Reform Would Protect Immigrants From Deportation
By Tina Luongo, Justine Olderman, Lisa Schreibersdorf
May 17, 2018
Gov. Andrew Cuomo made a strong statement in support of the rights and dignity of immigrants when he recently amended his September executive order clarifying that warrantless arrests by U.S. Immigration and Customs Enforcement agents are prohibited in most state buildings. He also sent a cease-and-desist letter to ICE publicly threatening a lawsuit and accusing the agency of making illegal arrests. These bold and necessary actions send a powerful message to federal officials that New York is committed to defending our immigrant communities.
But more can and should be done to defend New Yorkers from ICE detention and deportation, especially in the realm of criminal justice reform.
Studies indicate immigrants are generally more law-abiding than the general public, but even traffic stops or arrests on low-level charges that are later dismissed can cause serious harm to immigrants, as arrest fingerprints collected by the NYPD are shared with the federal government, putting them on ICE’s radar and at risk of indefinite detention and deportation.
As chief public defenders whose organizations represent both people facing criminal allegations and people detained by ICE and at risk of deportation, we are uniquely situated with broad insight into the scope of the problem and meaningful solutions. We offer 10 reforms to protect immigrant New Yorkers and keep our families and communities whole.
The governor should issue more pardons to stop deportations based on old convictions. Pardons are a powerful way to reward rehabilitation, and they can also protect immigrants, particularly those with legal status, from deportation based on prior mistakes.
End “broken windows” policing. In New York, the criminal legal system’s widest net is cast through “broken windows” policing, which disproportionately impacts communities of color and feeds President Donald Trump’s deportation machine.
Reform New York’s “gravity knife” laws. Currently, many immigrants and others working in various trades are arrested and prosecuted for simply possessing a work knife due to a very poorly worded statute from the 1950s. The state Legislature nearly unanimously passed a bill to fix that statute twice, but Cuomo vetoed it both times.
Shorten maximum misdemeanor sentences by one day. In many cases, immigration law renders immigrants – including those here lawfully – deportable based on a conviction that has a maximum jail sentence of at least one year. Several states across the country reduced the maximum allowable jail sentence for misdemeanors by one day from 365 days to 364 days to avoid this outcome – New York should do the same.
Abolish gang databases. The informal structure and often fleeting nature of gang associations do not permit an objective assessment of membership and lead to arbitrary and discriminatory identifications based on where you live, what school you go to, who your friends are or what NBA jersey you wear. Gang allegations, when subject to review, are all too often found to be a pretext for arrest and detention without any hard evidence. But ICE readily says it uses gang allegations to persuade judges to force those profiled, often teens without any criminal history, into indefinite detention as a coercive measure to demoralize and encourage these vulnerable New Yorkers to sign deportation orders.
Pass the state DREAM Act. This bill would make undocumented students eligible for financial aid to go to college. We believe education is a human right and a social good whose impact is maximized by universal access on an equitable basis.
Offer driver’s licenses to immigrants. Driving without a license is among the top arrest charges for undocumented immigrants because they are prohibited from obtaining one, yet many still must drive their children to school and commute to work – especially in rural and suburban areas. New York should join the dozen other states and the District of Columbia that permit undocumented immigrants to hold driver’s licenses. Creating access to driver’s licenses also allows for better regulation of who is on the road and under what conditions; it is good public policy.
Improve regulations for street vendors and legalize electric bicycles. Police crackdowns on New York City food delivery workers using electric bicycles and street vendors disproportionately impact immigrants and their families. New York state and New York City should work together to create a regulatory environment that promotes economic empowerment for vendors and service workers.
Legalize marijuana. The NYPD arrests more than 17,000 people for the lowest level marijuana possession every year, the vast majority of whom are black or Latino, despite surveys showing equal or greater use by white people. Right now, a marijuana conviction is the No. 4 reason for deportations. These convictions also render immigrants subject to mandatory detention with no right to a bond hearing. Legalization legislation should vacate as many prior marijuana convictions as possible to protect immigrants harmed by prohibition.
Pass comprehensive pretrial criminal justice reform. New York must reform bail, discovery and speedy trial laws that are rigged against defendants. Current laws allow prosecutors to coerce guilty pleas, including from those who are innocent, by withholding crucial evidence and requesting unaffordable bail that results in prolonged pretrial detention. This unfair system is particularly harmful to immigrants, who may be forced to choose between fighting their cases for months or years while in jail or accepting plea deals with immediate release and criminal records that make them deportable.
With a federal immigration and deportation system that relies heavily on local law enforcement, these measures are needed to protect immigrant New Yorkers from the Trump administration’s xenophobic policies.