“Sanctuary Cities” Are Not Biblical Sanctuaries

It’s been a month since I posted here! Life is thick with responsibilities and joys–family, athletics, spirituality, the daily grind of work–and so I haven’t had a chance to come up for air. But I wanted to briefly comment on a recent Chron story that one of my students (thank you!) sent me. It involves an unusual request by San Francisco’s D.A., Brooke Jenkins, to solicit federal cooperation in a matter involving two men accused of (unrelated) heinous crimes who are currently abroad, having fled our jurisdiction: she wants them extradited and tried here in San Francisco.

The simple and accurate response to this is exactly the one that Supervisor Aaron Peskin, often the voice of reason on the Board, voices in the article:

[T]he waiver Jenkins is pressing for is unnecessary, because nothing in San Francisco’s sanctuary city law prevents Homeland Security from apprehending and extraditing the two fugitives so that they can be prosecuted in San Francisco. He added, moreover, that the board would have to approve an ordinance to grant the exception, which means it would have to be debated in committee, subjected to two board hearings, signed by the mayor and set on the books for 30 days before taking effect, in late March at the earliest. 

By contrast, he said, “the feds can apprehend these people tomorrow.”

I feel like I need to highlight this because, in my circles and more generally, there seems to be an exaggerated sense of the protections that sanctuary cities or states can afford undocumented immigrants and other noncitizens. It seems we have forgotten the Trump days in which ICE personnel roamed the streets of the Mission looking for potential people to deport and we all had our cellphones at the ready in case someone was nabbed off the streets and needed help. They were not doing anything unlawful; they were doing something meanspirited and cruel, which is a completely different problem. While the federal government and the state of California are two separate sovereigns, they do operate in the same physical territory, a little bit like China Miéville’s book The City and the City. We don’t have to cooperate with them, but we can’t stop them from operating throughout the same geographic space on their own accord.

This has a few important corollaries. First, it is one more example in which the concept of geographic space needs to enter the criminal justice conversation. I have high expectations of carceral geography as a field of study, but I worry that it’s become basically like sociology of punishment with more abstruse jargon and a lot of metaphor, when there’s lots to be said about the practicalities of physical space. In that respect, our forthcoming book FESTER espouses a really pedestrian understanding of geography with immediate practical implications: you can’t treat prisons as if they exist apart from their surrounding counties when a deadly pandemic is on the loose. The same spatial problem, also with eminently practical implications, is present in the sanctuary city context: if you operate in the same space as someone you don’t cooperate with, at some point you will collide, and you’ll have to figure out how to work out the collision (in Miéville’s book, by the way, these situations require a third police force, called “breach.”)

Second, and related, people tend to forget the many points of contact between local and federal justice that cannot be avoided even with the most assiduous sanctuary city laws, and even if everyone on the local level religiously complies with them (some don’t.) Anytime someone is arrested, their fingerprints find their way into a federal database, where they are matched with the people who are here lawfully. If they are not, it’s not particularly challenging to figure out where they are. If local jail authorities will not allow ICE into their facilities (which, under sanctuary state/city laws, is okay), ICE officers can ambush noncitizens who are heading to meet their probation officers and arrest them in the parking lot. ICE holds on people serving state sentences are lawful and, the minute the person exits the state facility, they will end up in the feds’ hands.

The only thing limiting federal intervention is the extent to which the feds are interested in intervening, which is a direct function of presidential policy. Removal rates in the Biden era were much lower than in the Trump era. During the Obama era, they were fairly high, but federal policy emphasized people convicted of serious crimes, whereas under Trump there was the deliberately inflammatory persecution of DACA recipients (some of the most upstanding Americans I know.) Who gets targeted, and how many get targeted, is purely the function of who is president and what they (or their constituents) care about. This is stuff that local authorities can do very little about, given the many interfaces these systems share.

Legal historian Karl Shoemaker, an acclaimed Medieval historian and fellow JSP alum, wrote a fantastic book about the legal and moral rationales behind sanctuary in the Middle Ages and its decline toward the Early Modern period. As Shoemaker explains in the book, during these times, in which ecclesiastic authorities governed the legal universe, claiming sanctuary truly meant escaping any legal responsibility for one’s crime. It is no coincidence that these rationales, which seeped into British common law from ecclesiastic law, faded in the Sixteenth century, with the advent of the idea of a secular state.

The key to understanding the feeble protection that sanctuary state laws offer our noncitizen friends and neighbors is to remember that, back in the Middle Ages (and certainly in Biblical times, whence the idea of sanctuary emerged,) there were no competing secular jurisdictions jockeying for position. What we call “sanctuary” is a far cry from the ironclad religious protection of yore, and would be better described as “noncooperation” with a legitimate sovereign occupying the same physical space. Can the feds find these two men who are accused of heinous crimes, see to their extradition, and hand them over to Brooke Jenkins? Sure. The question is whether they want to.

Extradition, Extreme Punishment, and American Exceptionalism

While at the American Society of Criminology conference, I had the good luck to run into a colleague I really like and admire–Dirk Van Zyl Smit from the University of Nottingham. Dirk shared with me two recent decisions of the European Court of Human Rights (ECHR), in cases that he worked on (the ECHR allows professors to submit written briefs as “intervenors”, akin to what we do with amicus briefs here in the US), which illuminate the strange contortions that European countries go through in an effort to determine just how much they are willing to passively cooperate with USian punitive barbarism.

A little bit of background: Article 3 of the European Convention on Human Rights states that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.” In 1985, Protocol 6 to the Convention, which abolished the death penalty for all members, entered into effect. In accordance with the Protocol and with Article 3, all European Council members have abolished the death penalty (Belarus is not and has never been a member; Russia was recently expelled.) Moreover, the Council of Europe fights the death penalty within and outside its borders in numerous ways, including the well-documented refusal of its members to provide the U.S. with chemicals used in American execution protocols. One important aspect of this abolition-beyond-borders policy is a European Court of Human Rights case from decades ago, Soering v. United Kingdom (1989), which forbids extradition of people to the U.S. if they might face the death penalty there (virtually all European countries have extradition treaties with the US, as you can see in the above map.) Dirk tells me that the practice in these cases is to ask the U.S. to provide a guarantee that the death penalty will not be sought against the extradited person.

But what about life without parole, another form of USian extreme punishment? In Vinter and Others (2013) the ECHR found that “irreducible” life sentences were inhumane; this was applied in Trabelsi v. Belgium (2014) to the extradition setting. But later, in Harkins v. Home Secretary (2014), England’s High Court of Justice narrowly interpreted Trabelsi as applying only to life sentences that were grossly disproportionate or completely lacking in any mitigation mechanisms (such as commutation or parole.) Harkins and other cases (Wellington and Haffiz) treated Trabelsi as somewhat of an extreme aberration.

The Council of Europe’s hesitation to wage a war against LWOP makes more sense when you consider the LWOP situation in the European countries themselves, who also seem to interpret Trabelsi rather narrowly. Only Croatia, Bosnia and Herzgovina, and Portugal have abolished all forms of indefinite imprisonment. So did Spain, in 1928, but it brought the penalty back in 2015. By contrast, many countries have legally prescribed LWOP sentences: England and Wales, the Netherlands, Moldova, Bulgaria, Italy, Hungary, Malta, Cyprus, Albania, Ukraine, Serbia, and the Republic of Ireland. In some of these countries, evidentiary findings of dangerousness can prevent life prisoners to be released. In Austria and in Ukraine, the only way out of life imprisonment is presidential clemency or a finding that the person will not commit further crimes. As a consequence of Trabelsi, the Netherlands has recently allowed resentencing of life prisoners who have served at least 25 years. Even in LWOP-retentionist European countries, courts retain judicial discretion to decide whether a sentence of life should include parole or not.

One of the two recent cases before the ECHR involved Ismail Sanchez-Sanchez, who was arrested in the UK for his role in a conspiracy to ship more than 2600 kgs of Mexican marijuana to Atlanta, GA. At his extradition hearing, Sanchez-Sanchez argued that there was “a real risk that he would be sentenced to life imprisonment without parole.” The British judge, following the logic of Harkins, tried to assess the likelihood that Sanchez-Sanchez would receive LWOP at his federal trial. For the drug conspiracy alone, Sanchez-Sanchez was unlikely to receive a life sentence on any count, and it was even less likely that he would be serving his sentences consecutively. The fact that one of his co-conspirators died of a fentanyl overdose made it more likely that they prosecution would request a life sentence; such a sentence, however, would not be “irreducible”, as Sanchez Sanchez could appeal, apply for executive clemency, and/or request compassionate release.

The ECHR looked at the case through the lens of both Trabelsi and the British cases, and also received some information from the U.S. federal government that addressed both the prevalence of LWOP in the federal system and the particulars of Sanchez-Sanchez’s case. As to the latter, the U.S. Attorney specified that the prosecution recommended a life sentence for each of Sanchez-Sanchez’s conspirators, but they pled guilty and so avoided that sentence. The ECHR highlights the distinction between acknowledging that LWOP is inhumane as an institution within member countries and applying it to extradition to the US:

Within the domestic context, the applicant’s legal position, having already been convicted and sentenced, is known. Moreover, the domestic system of review of the sentence is likewise known, both to the domestic authorities and the Court. In the extradition context, on the other hand, in a case such as the present where the applicant has not yet been convicted, a complex risk assessment is called for, a tentative prognosis that will inevitably be characterised by a very different level of uncertainty when compared to the domestic context. This calls – as a matter of principle, but also out of practical concerns – for caution in applying the principles flowing from Vinter and Others, which were intended to apply within the domestic context, to their fullest extent in the extradition context. . .  Therefore, while the principles set out in Vinter and Others must be applied in domestic cases, an adapted approach is called for in the extradition context.

The first step in this “adapted approach”, according to the ECHR, is an inquiry into the “real risk” that the particular person facing extradition will receive LWOP after extradition. If so, we move on to the second step – an inquiry whether “there exists in the requesting state a mechanism of sentence review which allows the competent authorities there to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds.” Because of the uncertainty surrounding Sanchez-Sanchez’s odds of LWOP, as well as the sentences of his co-conspirators, the ECHR concludes that “the applicant cannot be said to have adduced evidence capable of showing that his extradition to the US would expose him to a real risk of treatment reaching the Article 3 threshold”, which renders the second step of the analysis unnecessary.

In the second case, Beverly Ann McCallum, suspected of involvement in the brutal murder of her husband in Michigan, was apprehended in Italy (the murder was a cold case from 2004, solved only in 2015.) During her years of absence from the U.S., her daughter and a friend were charged with first degree murder (the friend pled to second-degree murder; the daughter pled not guilty, was tried, and received LWOP.) The Italian court found that the extradition could go forward given the sentence mitigation options under Michigan law, and McCallum appealed. While awaiting the decision (under home arrest due to ill health), McCallum received a diplomatic note from the Eaton County district attorney, promising that if extradited she would only face second-degree murder charges (no conspiracy charges, only disinterment and mutilation of a dead body), taking LWOP off the table and resulting in a maximum sentence of life with parole. Under Michigan law, lifers are eligible for parole after 15 years, and may also petition the governor for clemency. The Italian authorities, animated by this communique, extradited McCallum to the United States.

Before the ECHR, McCallum argued that the diplomatic note contained insufficient assurances that the Eaton County DA would not revert to the serious charges (note: they did keep their promise despite the brutality of McCallum’s involvement in the murder – H.A.) The ECHR disagreed: Diplomatic notes, they wrote–

are a standard means for the requesting State to provide any assurances which the requested State considers necessary for its consent to extradition. … [T]he Court also recognised that, in international relations, Diplomatic Notes carry a presumption of good faith and that, in extradition cases, it was appropriate that that presumption be applied to a requesting State which has a long history of respect for democracy, human rights and the rule of law, and which has longstanding extradition arrangements with Contracting States. … [I]t seems to the Court that if, following her extradition, the original charges against the applicant were to be revived, that would not be compatible with the duty of good faith performance of treaty obligations.

The ECHR also proceeded to dismiss McCallum’s argument that her eventual release on parole depended on the unchecked discretion of the Governor of Michigan in granting clemency and was therefore “irreducible.” The Court again disagreed, highlighting the fact that the clemency power was procedural, rather than legislated, and had nothing to do with parole, which in Michigan is the sole purview of the parole board:

[T]he Court is not persuaded that the applicant’s understanding of the Michigan system is correct. It observes that. . . a prisoner’s release on parole is at the discretion of the parole board. While the Governor of Michigan indeed enjoys a broad power of executive clemency, he or she is not involved in the parole procedure. Nor do the relevant legal provisions empower the Governor to overrule the grant of parole to a prisoner. As indicated above, appeal against the grant of parole lies to the competent circuit court.

An applicant who alleges that their extradition would expose them to a risk of a sentence that would constitute inhuman or degrading punishment bears the burden of proving the reality of that risk. In light of all of the above-mentioned factors, the Court considers that the applicant has not discharged that burden. Contrary to her claim, it appears that there is no real risk of the applicant receiving an irreducible life sentence, i.e., life imprisonment without eligibility for parole, in the event of conviction of the charges now pending against her in Michigan.

I find two important takeaways here. The first is that the ECHR draws a real line between the death penalty–now widely outside of the acceptable margin of reasonable state behavior for Council of Europe members–and LWOP which, unless absolutely mandatory, remains within the realm of the reasonable. The second is that, among the members of the “extreme punishment trifecta”, life with parole–even with everything we know about the slim odds of obtaining parole–is not in the same league as LWOP, and assurances that the sentence will be the former fully satisfy the requirements of Article 3. What this teaches me is that American exceptionalism seems to have been relegated only to the world of the death penalty, and that Europe isn’t that far ahead of us in fully recognizing the possibility of LWOP as barbaric.

Teaching Crimmigration to Criminal Procedure Students: Lessons from the First Year

My advanced criminal procedure course is, as far as I know, the first and only criminal procedure course in the U.S. to include a crimmigration unit. Following a formative semester as a visitor at Harvard, during which I audited Phil Torrey’s terrific crimmigration course, I decided that this was an essential addition–this blog post, which I wrote at the time, explains why.

At the time, I hypothesized that there were knowledge gaps in immigration, which were not completely closed since the Supreme Court’s decision in Padilla v. Kentucky (2010). I was not the only one; in this piece, Gabriel Chin discusses the professional toll that Padilla advising would take on defense attorneys, who would now have to specialize in immigration law. Even in Padilla itself, Elena Kagan–then the U.S. Solicitor General–spoke about her concerns that an entire cadre of professionals would now need to acquire expertise in an adjacent (and not particularly easy to master) field.

True, Padilla did not require defense attorneys to become full-fledged immigration law experts. It only required them to advise clients of the immigration consequences of their conviction if those were clear. The problem is that one needs to know at least something about immigration law to even identify the appropriate statutes (for example, is the person admitted or not admitted to the U.S.? in the former case, the law is in INA §237; in the latter, in INA §212.) You can’t know whether the answer is clear without understanding what the question is, and that in itself requires expertise. A big part of the wisdom, from a defense attorney’s perspective, is having the basic skills to understand whether the immigration determination is even within the attorney’s wheelhouse.

Since Padilla was decided, public and private criminal attorneys have adopted a wide range of approaches to close the knowledge gap. For the purpose of creating my module, I assembled two focus groups of friends from various areas of practice. Beyond two immigration experts (an immigration law prof and a lawyer at an immigration rights nonprofit) I had three prosecutors, one appellate attorney, three public defenders and two defense lawyers in private practice. Before practice-teaching them the modules I created, I asked them where they got their immigration law expertise. I got quite a variety of answers:

One prosecutor said that their office took immigration consequences into account when charging; they had an immigration unit staffed by experts. The other prosecutor said that the D.A. ignored all immigration matters and instructed them to proceed as if immigration consequences did not exist. Out of the defense attorneys, the appellate lawyer was unfamiliar with the field (this is unsurprising, as appellate lawyers would only rarely encounter it.) The bigger, urban public defender offices had immigration units in-house, staffed by experts. In one rural public defender’s office, one person at the office specialized in immigration law and became the office’s unofficial go-to “expert.” In another rural office, everyone learned a little and called immigration nonprofits when they needed advice. The private attorneys were lost at sea and would use published materials from nonprofits when advising their clients. Everyone professed great ignorance and panic at being entrusted with counseling clients on immigration consequences.

The focus groups conversations convinced me that there is great need to add the basics of crimmigration to criminal procedure courses–at least the advanced bail-to-jail courses that are taught to people seriously contemplating criminal justice careers.

What to teach

In shaping the curriculum, I consulted with Phil and with my colleague and friend Tally Kritzman-Amir on what to teach. I decided that the students needed to know what what would touch on their criminal practice (and if they wanted to know more about immigration law, they could take a specialized course.) As criminal attorneys they are most likely to encounter crimmigration when advising clients whether to plead guilty or when negotiating charge bargains, so they would need to be familiar with the most popular removal grounds–aggravated felonies, crimes of moral turpitude, and some of the specific removal grounds–and acquire the skill of ascertaining whether a particular criminal conviction satisfies any of these. Many interesting crimmigration topics, including a detailed history of the immigration code, the immigration removal procedure, detention and bond, and immigration protections, were left out of the curriculum. To facilitate learning, I broke the crimmigration unit into three modules:

Module 1: Background to crimmigration (including Padilla and science-based readings refuting the immigration-crime nexus and examining the emergence of IIRIRA and today’s removal grounds); The admissibility doctrine (distinguishing between admitted/deportable and non-admitted/inadmissible noncitizens, defining “conviction” under immigration law, knowing the consequences of these definitions and distinctions); the categorical and modified-categorical analysis (the basic analytical tool the students would be using in Modules 2 and 3.)

Module 2: Aggravated felonies (explaining what generic offenses are., focusing on the categories of “crime of violence” and “trafficking in a controlled substance”, and highlighting the difference between elements of a generic offense and circumstance-specific elements, such as loss to the victim.)

Module 3: Crimes of moral turpitude (explaining the category within and outside the context of immigration, practicing some cases); the specific grounds of drugs, firearms, and domestic violence

The choice to front-load the mechanics of the categorical analysis reflected the fact that, of all the material I teach in the course, this would be one of the most difficult skills to master, in no small part because the federal removal grounds are so thin, vague, and poorly drafted, and state law can so often be overbroad and abstruse. This was also the reason I chose to sequence the entire crimmigration unit after teaching double jeopardy and sentencing. I reasoned that, at this point in the course, the students would have mastered the art (hopefully taught to them in 1L criminal law) of breaking an offense into its elements. Before teaching double jeopardy, I provided them with a prerecorded refresher on elements of the offense, reminding them that this skill matters beyond substantive criminal law. This way, prior to studying the crimmigration unit, they would practice this skill when determining whether two offenses count as the “same offense” for double jeopardy purposes (under Blockburger) and when determining whether a particular fact must be alleged in the charging document and found by a jury beyond reasonable doubt (under Apprendi.) These two topics would also serve as a rehearsal before learning the categorical analysis and make it more comprehensible.

A note on terminology

The first question I faced was what to call the new unit. I automatically gravitated toward the term “crimmigration”, popularized in Juliet Stumpf’s seminal article. The term has gained considerable traction, becoming the title of César Cuauhtémoc García Hernández’s book and eponymous blog. But then I received a thoughtful note from a colleague who explained that, when Stumpf adapted the term, it was being used in white nationalist/neo-Nazi circles with racist and xenophobic connotations. Its portmanteau construction can also be seen as reinforcing a particular set of suggestions about immigration and criminality that we seek to reject–namely, that there is a nexus between immigration and criminality. My colleague suggested the colloquial alternative “crim-imm”, or the clunkier “convergence between immigration control and crime control” (which reflects, quite well, Stephen Legomsky’s wonderful piece about the asymmetric convergence between the two fields.)

My colleague’s comments were well-taken, and I gave them a lot of thought, but finally decided to keep “crimmigration” as the unit title. There’s value in introducing students to the field by the name the field is known, so that if they seek to know more, it’s accessible and available to them. I also think that terminology isn’t static–it changes over time, and there have been multiple examples of derogatory terms being redeemed and put into empowering use by the people they sought to oppress.

Which brings me to the second issue. Immigration law currently uses the term “alien” to refer to noncitizens (here’s a CIS primer on definitions). Several students emailed, feeling jarred by the statutory terminology, saying it sounded “racist” (I think they meant xenophobic or dehumanizing.) I know this sentiment is shared by many, to the point that the Biden Administration is poised to change the term. I confess that I’m not an enthusiastic convert to the terminology obsession, which does not show any signs of abating. I get it–I’m not stupid–words can create reality. But we’re imbuing words with much more power than they have, I think, and this constant cycle of the linguistic washing machine is diverting attention from more important matters. It reminds me of how, as a child, I heard adults around me say “she has a bad thing… they found something…” treating the word cancer as if it was Voldemort. If a horde of dedicated, progressive-minded Biden officials do a “find + replace” function on the immigration code and replace all instances of “alien” with “noncitizen”, but leave all the removal grounds intact and continue to deny basic Gideon rights to people facing permanent banishment from the country, the enlightened terminology is not going to cheer me up. And given that the zeitgeist is all about certifying only the oppressed for speaking about their own oppression, I am happy to tell you that, prior to my naturalization in 2015, I was an “alien” for fifteen years–an alien student, a nonresident alien with extraordinary abilities, a resident alien–and I always found the term humorous and not dehumanizing at all. If foreigners are dehumanized and marginalized in the United States–and they absolutely are–it’s not because of what the INA calls them; it’s because of what we are misled to think about them. Nationalists were not born with the term “alien” at hand. “Alien” means foreign; it was then borrowed to describe extraterrestrial life. Whatever “they” took, “we” can reclaim, for whatever value of “they” and “we.” In class, I use “noncitizen” when I talk (or, when relevant, “lawful permanent resident” or “visa holder”), and “alien” when I’m quoting legislature, and I leave it at that.

What to read

For this course, I use an electronic casebook hosted by ChartaCourse, which gives me great control ver my materials. I assigned a bit of Legomsky’s article, sections from the INA, and some key cases. The selection of cases presented some challenges, though. The categorical and modified categorical analyses, which are the cornerstone of crimmigration, were established in federal cases, Descamps and Mathis, both of which deal with portions of the Armed Career Criminal Act (ACCA.) This presented a dilemma. On one hand, I wanted the students to know that the categorical analysis will come in handy in a variety of federal legal contexts; on the other, I didn’t want to confuse them and muddle the issue by making them read cases that are not about immigration. I opted for omitting Descamps and assigning only the portion of Mathis that explains the analysis.

As to the rest of the cases, I had to be quite selective and a harsh editor. The cases come from various federal courts and from the Board of Immigration Appeals (BIA), and they often involve various issues that pertain to the immigration side of the case, e.g., adjustment of status issues or removal protections. For the limited purpose of criminal practice, the students don’t need to know that. There are also cases that deal with interesting but arcane immigration law sections, and the choice I made was to focus on the common deportation and inadmissibility grounds. I can already see how making the choice to teach these materials will require keeping abreast of the information in a field adjacent to my own with its own precedents, etc., but there are blogs and other good people working on this, and honestly, after Padilla, I do think it’s our responsibility to teach this.

Finally, my materials include one of the best helping tools for criminal lawyers: the ILRC reference table and notes. It is detailed and trustworthy but, as I found, not exhaustive. I’m trying to teach the students not to rely on the table as the be-all, end-all of crimmigration (even though it’s very useful to have on hand) in the same way that I was taught, when I learned statistics, how to calculate F-values and t-values by hand while also learning STATA. There is immense value in doing the exercise by oneself, and I wanted to put people on the path to proficiency.

Crafting problems

Since the second semester of the pandemic, I transitioned my classes to a flipped classroom model: the students receive readings and prerecorded lecturettes in advance. In class, I go over the basics, and the bulk of the time is devoted to solving problems in small groups. Oftentimes, my problems are shaped after real cases. This proved to be a bit tricky in crimmigration. The cases are very complicated and require serious paring down. They are also often BIA cases, which means there are lots of adjacent, ancillary issues to be resolved on the immigration front. This means the hypotheticals need to be carefully edited, and that the ones based on real cases cannot be the first problems that the students solve. I have had to come up with simpler, two-liner problems that the students solve, and then graduate to problems based on recent cases.

Basing the problems on real cases also presented a problem involving the hermeneutics of immigration law. Because removal grounds are so generalized and vague, and because it is difficult to tell, just from looking at a state statute, whether it is divisible or not, there’s an abundance of caselaw, precedent, and courtroom documentation that needs to be looked at to ascertain how to resolve the problem. In the context of a classroom exercise, it is essential that all the information the students need be within the four corners of the problem. So that, too, requires attention in fashioning the problems. And, of course, working through these hypotheticals can be frustrating to the students, because it is ultimately not where the heart of their practice will lie, and it requires them to visit an entire different world of legal meaning-making. Which brings me to the heart of the matter.

The heart of the matter

I think the frustration and incredulity that the students might encounter when studying this material comes from a pretty understandable source: after all, I am essentially teaching them how to twist and turn their main occupation to bypass the perversion that is immigration law. Rather than looking at what a defendant did and charge them with that, they now have to think ten steps ahead, consider what the feds might do, and craft the whole narrative of the case away from the truth if they are trying to avoid immigration consequences.

What mitigates this frustration, though, is the other component at the heart of the matter: I kept banging the same drum again and again in class–the fact that, across all places, crime categories, and legal statuses, immigrants commit less crime than the native born. I usually deeply dislike facile, oversimplified slogans, but in this case there’s robust social science supporting that, and I had to talk about that again and again because the perception of an immigration/crime nexus is incredibly pervasive and very resistant to modification–more resistant than any other myth of immigration. I think the students might feel better about learning how to perform this analysis if they know that the purpose is to prevent situations in which ancillary, collateral consequences eclipse the actual criminal process and frustrate its goals.

Stressing the moral imperative to take this so-called externality into account in criminal lawyering is important for another reason. That the categorical analysis is technical and ignores the facts of the cases creates the risk that class will become a glib game, akin to the fantastical hypos that are often part and parcel of teaching 1L criminal law. The somber, urgent quality that accompanies the perceived domestic crises (the prime example is the relationship between police departments and communities of color) can be absent from this unless personal stories of people are brought forth. And the absurdities need to be highlighted for people to feel that what they are doing is not just an intellectual exercise of overlaying one offense on top of the other, but a valuable effort to save families from falling apart.

Striking the right balance

Toward the end of the third module, I asked my students whether learning this material made them more or less confident about their ability to do this. Responses were mixed (even though they knew nothing about this analysis before taking the unit!). I’m not sure that’s a bad result. On one hand, per Padilla, you want the students to feel empowered to offer this kind of advisory to their clients–it is their constitutional duty. On the other, you don’t want them to be overconfident about their ability to clearly predict the immigration consequences of everything under the sun. In this respect, Padilla is too optimistic about the ability of a criminal lawyer to tell a simple crimmigration case from a complex one. Immigration law is ever-changing, very responsive to the blowing of political winds, and what my students are taught about immigration law might not be good law under a new administration. Rather than have them freeze in panic, I would like to empower them to take action: call an immigration lawyer or a nonprofit and consult. Because this isn’t going to be sustainable for every lawyer/client, I think that ultimately the answer to the problem of advising noncitizen clients should be a combination of two factors: the emergence of law school clinics whose job is to offer Padilla support to public and private defense attorneys, and the establishment of an excellent MCLE credit network that keeps criminal lawyers abreast of pertinent developments in immigration law.

If you are a criminal procedure professor who read this, feels inspired, and wants to teach my bail-to-jail course with my immigration materials, contact me (or contact ChartaCourse.)

Not My Circus, Not My Monkeys

Every week, the incomparable Magi Otsri sends a prompt to aspiring writers with an interesting writing exercise. This week’s exercise involved exploring a forbidden emotion. The example she gave reminded me immediately of a phenomenal piece by early 20th century Hebrew literary giant Gershom Shofman, master of the short story. I couldn’t find an English translation, so I’ll provide my own:

The moralizing poet sat in his room and wrote

an earnest complaint on ‘human indifference’

on the old-new matter of ‘to each his own’

on how one falls in the middle of the street

and no one pays attention.

So he sat and wrote–and was startled; a child’s wail

pierced his ears from the outside, where his children were playing.

Plume in hand he ran to them

alarmed, and a great joy overcame him:

A stranger’s child is crying! A stranger’s child.

I expect all parents are viscerally familiar with the emotion Shofman paints so well in this vignette; I felt it myself as a mom numerous times. Rio was a month old when Chad and I took him to the de Young Museum to take in the Teotihuacán exhibit. Chad wore Rio in a carrier and I ran to the restroom, only to hear Rio’s distinct baby cry (“Laaaaaaa!”) from the next stall. A great fear washed over me, followed with such an overwhelming sense of unmitigated joy and relief at realizing that it was someone else’s baby who was wailing. Only after I gained my bearings did a small stream of shame trickle into my joy, a reminder of the Doctrine of the No Self, of Nonduality, of the Sangha, of all children’s cries being equally important, of the Bodhisattva’s Vow to alleviate all suffering. The shame, like a drop of dark ink in a glass of water, painted my relief light blue.

Only yesterday, at the majestic Dolores Park playground, a child spilled sand onto another child’s shirt. My first instinct was to step in, scold, soothe, intervene; then a voice arose within me, whispering, “neither child is yours,” and I kept my attention on my own child, who was calmly driving his toy dump truck with a few of his friends a couple of feet away.

On the way back home–an exhausted child sweetly sleeping in his car seat behind me–I thought about Shofman and other people’s children. Much of my involvement in criminal justice advocacy and in immigration reform efforts comes from the sense that the many horrors we wreak upon children–sentencing juveniles as adults, housing children in dehumanizing dungeons, the current unaccompanied minor nightmare, Flores and “baby jails”–come precisely from the problem Shofman identified: that we instinctively draw a thick line between our child and other children, and as a society, between “our” children, complete with innocence and compassion, and otherized children, whose childhood is deemphasized and denied. In the last few years, whenever I’ve shown Ken Burns’ terrific documentary The Central Park Five to my seminar students, they have expressed shock at the interrogation footage. “How could she treat them like this?”, they say, “It’s so obvious that they are kids.” Yes, I think to myself, it’s obvious now, but it wasn’t obvious in the mid-’80s; as I explain at the end of Yesterday’s Monsters, the “rediscovery of childhood” happened only in the mid-2000s, when neuroimaging technology acquainted us better with the development of the prefrontal cortex.

Contrast these scenarios, in which we must, societally, intercede on behalf of other people’s children, with the oppressive sense that every public foray into the political speech arena, be it a large campaign or a single tweet, can land one in a deep well of irritation, unpleasantness, and social disharmony. I’ve written about the voracious tendency, fed by social media, to make every story a colossal morality tale here and here. These days, every time some twitter scandal does not involve me personally, my default choice is to opt out. Don’t start anything you won’t enjoy finishing, whispers the invisible owl on my shoulder. Why ask for trouble? Whatever you post will be taken out of context by four people and that’ll be the end of you. The Polish proverb comes to mind: Not my circus, not my monkeys.

Our hero John Lewis implored us to get into “good trouble”–and in the tradition of the Jewish drash, I’ll throw in this interpretation: a necessary preamble is the ability to discern “good trouble” from “bad trouble.” Good trouble is the kind we must get into, for our children, for other people’s children, for all children, human, nonhuman, living, breathing. Bad trouble is the sort your heart and common sense tells you will become worse if you step in it. Which is which–your heart’s beat and the drop of disquiet ink in your glass of peace can tell you, if only you listen to it.

SAVE THE DATE: California Correctional Crisis: Mass Incarceration, Healthcare, and the COVID-19 Outbreak

Dear Friends,

Three UC Hastings journals are coming together to organize an important symposium on incarceration and healthcare, focusing on the COVID-19 prison crisis. We are excited to invite you–details will follow. For now, please SAVE THE DATES!

When?

  • Feb. 5, 12-4pm: California Correctional Crisis, Meet COVID-19
  • Feb. 12, 12-4pm: Focus on reproductive justice, trans incarcerated people, and special populations
  • Feb. 19, 12-4pm: Focus on immigration detention and healthcare

Where? Online (registration details to follow)

The conference will feature amazing speakers: advocates, activists, academics, officials, formerly incarcerated people. Among our confirmed speakers are renown prison historian Prof. Ashley Rubin; prison law expert Prof. Sharon Dolovich, Director of the UCLA COVID-19 Behind Bars Data Project; Adnan Khan, Executive Director of Re:Store Justice; Richard Braucher of the First District Appellate Project, counsel for Ivan Von Staich in the landmark case that resulted in a San Quentin population reduction order.

MCLE Credits for lawyers pending. Please plan on joining us!

Your hosts:

Counseling Criminal Clients on Immigration: A Tall Order

In 2010, the Supreme Court decided Padilla v. Kentucky. Padilla, a long-time legal permanent resident of the United States and a Vietnam veteran, was caught with drugs in Kentucky. His lawyer advised him to take a plea deal and told him not to worry about the immigration consequences of the conviction because “he’s been in the country for so long.” Lo and behold, the conviction triggered immigration consequences and Padilla was subject to mandatory deportation.

In a surprising departure from its usual approach to the ineffective assistance of counsel doctrine, the Court found that the defense attorney provided advice that fell beneath the minimum professional requirements and also prejudiced the client, thus failing the test from Strickland v. Washington. Justice Stevens’ opinion explains that immigration consequences of criminal conviction (“collateral” consequences) are often much more serious than the punishment meted out by the criminal justice system. In his words:

We have long recognized that deportation is a particularly severe “penalty”; but it is not, in a strict sense, a criminal sanction. Although removal proceedings are civil in nature. . . deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century. . . And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it “most difficult” to divorce the penalty from the conviction in the deportation context. . . . Moreover, we are quite confident that noncitizen defendants facing a risk of deportation for a particular offense find it even more difficult.  

Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strickland applies to Padilla’s claim.

All of which is true: deportation is, indeed, a life-altering penalty, and clients must absolutely take it into account when crafting their trial strategy. But where does this leave defense attorneys, who have had to learn an entire new field of law, rife with hypertechnical distinctions, arcane definitions, and jurisdictional messiness?

For the uninitiated, I’ll just say that the terms used by the INA and other immigration legislation do not mean what defense attorneys would be justified in thinking they mean. A “conviction” under the INA is not necessarily a conviction under state law. An “aggravated felony” under the INA need not be aggravated, nor a felony. “Drug crimes”, “domestic violence”, “firearm”, mean very different things in the immigration context than they do under state law. And don’t even get me started on crimes of moral turpitude, the meaning of which is so vague and fluid that immigration courts still refer to a legal dictionary from 1914. Unconvinced? How about a Jamaican citizen and legal permanent US resident busted for having 1.3 oz of marijuana facing deportation and having to take his case all the way to the Supreme Court to clarify whether this counts as an “aggravated felony”? Nor weird enough for you? Then why should it take a certiorary to the Supreme Court to save from deportation a mathematics professor–Green Card holder from Tunisia–caught with a sock containing four orange pills, who got nailed under Kansas law not for the pills, but for possession of the sock?

The point I’m trying to make is not that U.S. immigration law is nuts (that should be obvious), but rather that, in 2010, expecting garden variety defense attorneys to master all this, complete with all the contradictions and differences, was a tall order. Many people in the civil rights community (me included) hailed Padilla for finally drawing attention to the horror that collateral consequences can bring onto a person’s life. But what if Padilla completely backfired, and what we’ve created is an invitation to confusion at best and malpractice at worst?

Consider this: None of the criminal procedure bail-to-jail courses I am familiar with, including mine (this is going to change as of the next time I teach it), includes a crimmigration unit. Not all law schools even offer a crimmigration class, and of course if they do it’s not mandatory. The bar doesn’t test on immigration and certainly not on crimmigration. I did an informal poll among my former students who practice as defense attorneys. Those who work at public defender offices are lucky in that good, conscientious outfits have prioritized hiring immigration experts (this does not dispense with the Padilla requirement, because presumably the ethical responsibility is still the public defender’s, but at least it offers the clients correct advice.) Those who work as private attorneys, or in smaller outfits such as alternate public defender offices in rural places, are left completely in the lurch. They rely on charts and lists such as this one, or they’ll refer the clients to immigration attorneys, but that means that people who are already in dire financial straits incur even more costs. At least one person admitted to me that they pass on cases with immigration consequences because they fear ethical violations and don’t want to do a bad job, and while this reluctance is understandable, one wonders where that leaves clients with immigration issues (who are already among the weakest, most disenfranchised folks in the system) collectively. More commonly (and also disturbing)–my former students admitted their immense discomfort when counseling people not to take good deals, or to go to trial with a very flimsy chance of success, or to take ridiculous deals that are immigration workarounds. They were (understandably) confused about whether advising their client about the least of all evils–taking a suboptimal criminal justice strategy to save them immigrationwise–was ethically clean, even when realistically sound. They also expressed frustration when dealing with ill-informed (at best) or callous (at worst) prosecutors who chide them for asking for something “special” or “preferable” for a client in risk of deportation.

In other words: This is not good.

I have a few thoughts about this. The first is that a solid empirical study of Padilla‘s impact on criminal practice is absolutely essential. This would require a survey of a large group of defense attorneys about how Padilla altered their criminal practice, as well as in-depth interviews with examples. This stuff will have to be triangulated with what we know about criminal representation, to check whether the additional burdens on defense attorneys have resulted in worse access to justice for noncitizen defendants.

The second is that all of us who teach criminal procedure in law schools–I’m going to start this and my chartacourse electronic casebook is available for you to use–have got to revise our curriculum to include a basic crimmigration unit. I’m thinking something between 6-8 hours covering the categorical approach, aggravated felonies, crimes of moral turpitude, some more specific removal categories, and basic situations in which one’s client might interface with the immigration system. In addition, of course, specialty crimmigraiton courses must be offered in every law school that purports to certify ethical defense attorneys for practice. The bar exam, for all its imperfections, can add immigration law to the list of covered subjects, and this would be relatively easy to do in the MBE because it’s federal law.

This is not a perfect solution, given that immigration law changes frequently and is subject to administrative whims (even when not dealing with someone as unhinged as the current occupant of the White House). Because of that, my third thought is that, in offering and taking CLEs, priority must be given to crimmigration updates. If and when we establish a defense bar, crimmigration proficiency has to be prioritized.

Same deal, by the way, for prosecutors: Larry Krasner’s initiative in forming an immigration unit at the D.A.’s office is an essential tool for any prosecutorial outfit that purports to give people what they deserve, rather than indirectly bring about grossly disproportionate punishment. Immigration is not an externality: it is part and parcel of the person’s fate, and has to be treated as such by the D.A.’s office.

If you are a defense attorney and have encountered immigration issues in your criminal practice, I would love to hear from you in the comments.

Crimmigration Meets Sentencing: Assimilating the Apprendi Doctrine to Simplify the Categorical Analysis

As part of my visitorship at Harvard, I’m having the great pleasure of auditing Philip Torrey‘s terrific Crimmigation class and learning a lot about this relatively new, but hugely important, legal field. After Padilla v. Kentucky, knowing the immigration consequences of criminal convictions are not just “nice to know”–they are an ethical obligation for criminal attorneys, and our shameful immigration policy means that many, many criminal cases will have immigration consequences.

Because removal from the U.S. is one of the most severely destructive things you can do to a person’s life–far more destructive than the domestic sentences for many offenses–it is imperative that these consequences be foreseeable. Indeed, when you read caselaw written about crimmigration the judges will often say “this is obvious”, but it is not obvious at all. The categories are nebulous and complex, the overlap between federal and state law is far from complete, and on the receiving end of this are people who have to figure out their criminal case strategy with an eye toward the immigration consequences. So, simplifying the analysis is overall a good thing.

In this post I’m presenting one idea/suggestion on a possible simplification of crimmigration, which in the grand tradition of the field, requires importing an idea from the criminal to the immigration realm–namely, planting the Apprendi analysis regarding the definition of an “element” of the offense to the categorical analysis done in immigration removal cases. Let’s explain.

When a person is removable from the United States on criminal grounds–whether as “inadmissible” (having not been legally admitted into the country) or “deportable” (having initially arrived here legally)–the law governing the removal can be found in sections 212 and 237 of the INA. These sections enumerate the sorts of criminal consequences that trigger removal. In general–and this is hugely simplified–“inadmissible” noncitizens can be removed following a conviction for a “crime of moral turpitude”, a controlled substances offense or two or more convictions of some seriousness, or for being known as a controlled substance trafficker or a trafficker in persons or engaging in prostitution or other commercialized vice. “Deportable” noncitizens can be removed following a conviction for a recent crime of moral turpitude (or a combination of older crimes of moral turpitude), an “aggravated felony” (which need not be aggravated nor a felony), high-speed flight from an immigration checkpoint, failure to register as a sex offender, or an offense involving controlled substances, firearms, or domestic violence (more detail on all this in my colleague Richard Boswell’s excellent book.)

The challenge in applying these categories lies in that the federal definition of these offenses, as well as of the concept of “conviction”, can differ from the state definition where the person was tried and convicted. Setting aside the issue of “conviction”, which in itself is complicated, how can we tell whether a state conviction for a violation of a particular state statute is the equivalent of a conviction for an “offense involving controlled substances” as per immigration law?

To resolve this question, immigration courts recur to the “categorical approach”: the analysis focuses on the content of the relevant statutes (the state criminal statute and the federal immigration statute) rather than on the facts that gave rise to the incident. Basically, the court will analyze the offense from the immigration statute, analyze the elements of the criminal statute, and if the former is narrower or equal to the latter (at its least culpable version), the person is deportable on criminal grounds. This kind of analysis is reminiscent of the analysis of several criminal procedure and sentencing doctrines, starting with the application of the ACCA (Descamps, despite having nothing to do with immigration, is regarded as precedent for immigration cases) and continuing with the Blockburger test for “same offense” in the double jeopardy context.

But wait! Things get complicated, because state statutes are seldom straightforward. They often include several alternative actions, circumstances, or mental states. When faced with such complexity, immigration judges have to figure out whether it is a “divisible” or an “indivisible” statute. A “divisible” statute is a statute that includes several alternative elements, in which the jury has to find positively, beyond a reasonable doubt, that a particular subset of these alternatives (as opposed to the other alternatives) occurred. If that’s the case, the “modified categorical approach” allows the court to go beyond the face of the statute and look at actual documents from the case–say, the indictment, the plea colloquy, the jury instructions–to figure out which version of the divisible statute the person was convicted of. Then, the court proceeds with the categorical analysis with respect to that particular subdivision. By contrast, some statute will enumerate alternative features, but those don’t rise to the level of “elements”–they are merely “means”, which is to say, a criminal jury is not required to specify which of these they found occurred in the case. If so, the regular categorical analysis stands and the court won’t be permitted to go beyond the language of the statute.

Corollary: It is very important, for immigration law purposes, to know whether the alternative wording in the statute constitute “elements” or “means”.

For an example of this analysis, look at the Ninth Circuit decision in Rendon v. Holder (2014). The case involved the California burglary statute, which prohibits entry with intent to commit “grand or petit larceny or any felony.” Because not any felony is larceny, there’s a possible argument that this is a divisible statute; but the Ninth Circuit analogized this case to Descamps, which deals with the exact same statute in the ACCA context, to say that it is not a divisible statute. The reason? A California jury deliberating a burglary case would not be required to unanimously decide between “larceny” versus “any felony,” or to unanimously agree as to the “felony.”

How do we know this? One tell-tale sign would be if the burglary statute affixed different sentences to people entering to commit “larceny” and people entering to commit some other felony. That would be an indication that these elements have to be found by a jury. But this is not the case here, so the courts in Descamps and Rendon have to go into the statute and into jury instructions etc.

The thing is, we don’t actually need the middle man. In 2000, SCOTUS decided Apprendi v. New Jersey, which is not an immigration case but a sentencing case. The story was as followed: Apprendi fired several shots into the home of an African-American family and made a statement–which he later retracted–that he did not want the family in his neighborhood because of their race. He was charged under New Jersey law with second-degree possession of a firearm for an unlawful purpose, which carries a prison term of 5 to 10 years. But New Jersey also had a hate crime statute, which was not mentioned in Apprendi’s charge, and which doubles the sentence of a crime if a trial judge finds, by a preponderance of the evidence, that the defendant committed the crime with a hate motive. Apprendi pleaded guilty, the prosecutor filed a motion to enhance the sentence, and the judge found by a preponderance of the evidence that the shooting was racially motivated. As a consequence, Apprendi got 12 years – 2 more than the maximum sentence for the basic firearms conviction. On appeal, Apprendi argued that the hate motive should have been mentioned in the charging document and proven to a jury beyond a reasonable doubt–in other words, according to the classification that was valid at the time, that the “hate motive”, despite appearing in a separate statute, was an “element of the offense” and not merely a “sentencing enhancement.” Writing for the majority of the Court, Justice Scalia found that the distinction between an “element” and an “enhancement” was unclear and unnecessary, and that the 6th Amendment, as well as the principle of legality, required a jury decision beyond a reasonable doubt regarding “any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction.”

Apprendi yielded a whole series of cases dealing with the question of what counts as an “increase in penalty”, but that’s not of concern here: what I argue is that the same test can be used in the immigration context, and it renders unnecessary the whole distinction between “elements” and “means.” If the ruling in Apprendi is adopted in the immigration context, immigration judges looking at a complex statute need only ask about a particular part of the statute: does this part impact what sentence the person’s going to get? If so, the statute is divisible, and this fact is the subdivision we have to apply the modified categorical approach to. If not, the statute is indivisible, and we don’t have to worry about this part and we apply the straightforward categorical approach.

Why is this a good suggestion? Well, for one thing, it makes things simpler. This in itself is a virtue in immigration, and the reason why the categorical approach was adopted to begin with: clear administrative decisionmaking and uniformity. This is especially important, because while the logic behind not getting into the facts was supposedly to make things easier, it hasn’t, and courts bumbling through doctrinal analysis don’t necessarily do a better job than courts bumbling through case facts. If there’s something we can do to simplify the doctrinal analysis, we’re actually helping.

In addition, adopting Apprendi in immigration removal cases the trend of adopting criminal law logic in immigration contexts, and would do something to correct the imbalance in the interface between the two areas of law. It would also harmonize the tendency to prefer these kind of clean, element-based analysis with other areas of criminal law, such as double jeopardy. 

Finally, this is not a bleeding-heart-open-borders suggestion: presumably, if you are the “you do the crime, you do the time, you leave the country” type, without fair warning as to what the “crime” consists of, you don’t have much of a moral basis for your retributive stance.

I’d love to hear your thoughts.

CA Divests from Private Prisons: Realistic? A Good Thing?

Hailed, and partly for good reasons, as a positive development, the Guardian today announces:

The private prison industry is set to be upended after California lawmakers passed a bill on Wednesday banning the facilities from operating in the state. The move will probably also close down four large immigration detention facilities that can hold up to 4,500 people at a time. 

The legislation is being hailed as a major victory for criminal justice reform because it removes the profit motive from incarceration. It also marks a dramatic departure from California’s past, when private prisons were relied on to reduce crowding in state-run facilities. 

Private prison companies used to view California as one of their fastest-growing markets. As recently as 2016, private prisons locked up approximately 7,000 Californians, about 5% of the state’s total prison population, according to the federal Bureau of Justice Statistics. But in recent years, thousands of inmates have been transferred from private prisons back into state-run facilities. As of June, private prisons held 2,222 of California’s total inmate population.

What does this mean, exactly? Keep in mind that there are no actual private prisons on California soil–and yet, California is one of the private prison industry’s best clients, as it houses thousands of its inmates in Arizona and other states that have a flourishing array of private facilities (mostly owned by CoreCivic, formerly the CCA, and the Geo Group.) The bill, AB 32, changes this relationship by barring the state from contracting with private providers outside the state. This includes, importantly, the use of private prisons for holding undocumented immigrants: “Detention facility” is defined in the bill as “any facility in which persons are incarcerated or otherwise involuntarily confined for purposes of execution of a punitive sentence imposed by a court or detention pending a trial, hearing, or other judicial or administrative proceeding.”

Is it realistic for CA legislature to divest from private prisons? It is, to the extent that “private prison” is, as defined in the bill, “a detention facility that is operated by a private, nongovernmental, for-profit entity, and operating pursuant to a contract or agreement with a governmental entity.” But what about the many functions provided inside so-called governmental prisons in CA through private subcontractors? This interesting magazine article about prison food in Chino depicts what is an atypically good reality; prison food is hard to provide without recurring to private contracting, and is awful whether provided through public or private means. Similarly, the much-maligned CA prison healthcare system, which has been for years in the hands of a federal receiver, extensively contracts with private health care providers. This stuff is not the alternative to a public prison economy: it *is* the economy. How do we make sure that prisoners have beds to sleep on, doctors and nurses to take care of them, and two or three (meager, yucky) meals a day? In the neoliberal capitalist world, there aren’t a lot of options out there. So divesting from private prisons completely is not a particularly realistic premise, nor is it particularly desirable (private providers are not categorically worse for the inmates than public providers, and everyone is motivated by greed, as I explain here.) It does have one important, unqualified positive effect: we are not building new public prisons, and we are not housing people in private prisons anymore, so we should incarcerate less people, period. That in itself will be a success.

But there’s something else I find somewhat fishy here, and that’s the supposed divestment of CA from private detention of immigrants. The picture here is much more complicated, because undocumented immigrants are primarily the responsibility of DHS and ICE, the latter of which incarcerates and prepares people for removal as the federal arm of law enforcement (Richard Boswell explains this separation of powers very well here.) What the feds do is contract with states such as CA to house undocumented immigrants, over whom Congress has plenary power and ICE has enforcement prerogatives. Some CA cities house immigrants in their public jails; others contract with private subcontractor providers to meet ICE’s demand. CA’s complicity with awful federal policies is not so much in the fact that they deal with private contractors; its in the awful conditions in both private and public facilities and in poorly supervising the conditions in these places. To be fair, it’s not all CA’s fault – their inability to supervise more effectively stems largely from the general chaos in immigration detention and from hurdles placed by ICE. But I’m unclear on whether these undocumented minors are worse off in private facilities than they are in post-Plata public jails, which do a notoriously poor job distinguishing between immigrants and “real criminals” (whatever the heck that means.)

In short, before dancing a jig about divestment from the public industry, let’s ask ourselves some hard questions about the market itself and how it incentivizes public and private institutions alike to do a poor job locking people up (including people whose only supposed “crime” is saving themselves and their families from the conditions in Central America.)

Cruelty to Migrant Kids Is Not “Cheap on Crime”

The Washington Post reports this absolutely heartbreaking piece of news:

The Trump administration is canceling English classes, recreational programs and legal aid for unaccompanied minors staying in federal migrant shelters nationwide, saying the immigration influx at the southern border has created critical budget pressures. 

The Office of Refugee Resettlement has begun discontinuing the funding stream for activities — including soccer — that have been deemed “not directly necessary for the protection of life and safety, including education services, legal services, and recreation,” said U.S. Health and Human Services spokesman Mark Weber.

Since these days things that used to solidly reside in the “needless to say” category need to be explicitly said, I’ll open with this: This is monstrous, gratuitous cruelty. And what is the justification?

Federal officials have warned Congress that they are facing “a dramatic spike” in unaccompanied minors at the southern border and have asked Congress for $2.9 billion in emergency funding to expand shelters and care. The program could run out of money in late June, and the agency is legally obligated to direct funding to essential services, Weber said.

Last week I spoke on a mini-plenary about dignity and austerity. The other presenters addressed issues such as takings, welfare cuts, neoliberal banking, and the like, in which “savings” are synonymous with, essentially, letting go of caring for the world’s (or the country’s) weakest population. Because in criminal justice things don’t operate quite that way, I’ve had to explain that investing money in people in the context of criminal justice is not necessarily to their benefit, and often works to their detriment. The big exception to this statement, though, is rehabilitative programming: the dark side of the developments I discussed in Cheap on Crime (and on the plenary) is the continued trend to deeply cut rehabilitation programs.

Doing so, especially in the context of juvenile populations, is not a wise, “justice reinvestment move”. Beyond being cruel, it is penny wise and pound foolish. Educated, physically active, nurtured children are far more likely to have a “stake in conformity”, to use Hirschi’s term. Are migrant kids deprived of the opportunity to learn the language most prominently spoken in their new country and, for heaven’s sake, to play soccer, more or less likely to desire to be law-abiding, proud residents?

Contrast this horror with another piece of news: San Francisco sets out to eliminate its Juvenile Hall. Readers of Nell Bernstein’s Burning Down the House, as well as anyone even minimally informed with the realities of juvenile confinement in California, will surely welcome this beneficial development, and look forward to a public health model of handling juvenile transgressions.

ICE Agents Enter Santa Clara Jail

About a week ago, the Chronicle broke this story:

The Santa Clara County Sheriff’s Office allowed federal deportation officers to enter the jail it operates and interview four inmates this month in violation of the agency’s pro-immigrant sanctuary policies, officials said. 

The interviews occurred March 7 and 8, around the time that U.S. Immigration and Customs Enforcement officers visited San Francisco County Jail and interviewed an inmate there in a breach of the city’s sanctuary rules, which restrict local cooperation in deportation efforts. 

That incident prompted an apology from San Francisco Sheriff Vicki Hennessy. But while the recent ICE forays into the jails expose the growing tension between federal immigration authorities and many California leaders, the content of the interviews — and the potential consequences to the inmates — remains unknown. 

Santa Clara County Sheriff Laurie Smith, in a statement to The Chronicle, said members of her staff “mistakenly” let ICE officers into the jail. After learning of the incident, she said, the office “reevaluated and strengthened the clearance procedures in which all law enforcement agencies are permitted to enter our facilities.”

This incident raises some interesting Tenth Amendment issues, which are of course in the news almost daily. We all know that immigration is within the provenance of the feds and not a state matter. But what this actually means, in terms of the broad range between cooperation and obstruction, largely depends on who you ask. Just a few days ago, our fascist-in-chief recurred to his usual mode of spewing bile from his seeping id, Twitter, to complain that “something should be done” about Oakland Mayor, Libby Schaaf, who warned her constituents about an upcoming ICE raid (most of whom, by ICE spokesperson’s own admission, were peaceful Oakland residents with no records–he was asked to lie about this and resigned his position as a consequence.) Whether what Ms. Schaaf did amounts to obstruction is debatable: our xenophobic administration would claim that it does, I would claim that it does not.

But what about the Santa Clara jail? On a subsequent ICE visit, the federal agents were denied entry into the jails, a corrective move corresponding to the Sheriff’s statement that their entry was a “mistake.” In times of darkness, uniformed goons depend on their uniforms and badges to scare people, and that can include local authorities, into submission. This should be an object lesson for every Sheriff in California.