Prop 36 could see more criminals deported, immigrant advocates say

Public defenders and advocates for immigrants are warning that Proposition 36 could result in more people who are convicted of crimes being deported if voters approve it on Tuesday.

The initiative could also enable district attorneys to decide who can and cannot stay in the country by giving them discretion to bring more serious charges.

"It places an enormous amount of power in the hands of prosecutors, especially because it takes power out of the hands of immigration judges," said Raha Jorjani, supervising immigration defense attorney with the Alameda County public defender's office. "The problem with Prop. 36 is that once an offense gets into a particular category, it takes away an immigration judge's power to even hear a case."

"This argument is a red herring because prosecutors already have a proven track record of working to mitigate unreasonable immigration consequences," said Greg Totten, co-chair of Yes on Prop 36 and CEO of the California District Attorneys Association, in an email." Specifically, for Prop 36, the goal of the new treatment-mandated felony is to reduce drug-related crimes and highly incentivize individuals into treatment and then after treatment, defendants can have their charges dismissed. This will provide no risk of an immigration consequence for those who complete treatment."

"Greg Totten can't have it both ways" Jorjani said. "If he supports this proposition, then he believes nonviolent offenses like shoplifting and drug possession should be classified as felonies."

Proposition 36 would roll back portions of Proposition 47. This is an initiative voters passed a decade ago amid concerns about high levels of incarceration in the state. The new initiative would make it easier to charge defendants with felonies by allowing prosecutors to aggregate some thefts to reach the state's $950 threshold. It also contains provisions allowing more serious charges against some repeat criminals.

A Berkeley Institute of Governmental Studies poll released on Friday found Proposition 36 leading 60% to 25% among likely California voters. This was the latest of several polls in recent weeks showing it with an overwhelming lead, driven by voters' renewed concerns about rising crime.

So far, the issue of immigration has played little role in the debate over Proposition 36. But it could make immigrants who commit crimes more likely to be deported in two ways. First, it would result in more people being classified as felons, and therefore subject to prioritized removal by immigration authorities. Second, it could result in more people being held in criminal custody. This could make it easier for Immigration and Customs Enforcement to pick them up.

These factors could become even more important if Donald Trump wins the presidency again in Tuesday's general election. Then-California Chief Justice Tani G. Cantil-Sakauye repeatedly criticized the Trump administration in 2017 for sending immigration agents to detain immigrants at California courthouses, sometimes when they were appearing on misdemeanors or civil matters.

"Prop. 36 is an attempt to do away with 20 years of criminal legal system reform by criminalizing vulnerable communities, including those who are not U.S. citizens," said Bernice Espinoza, a removal defense attorney with Sonoma Immigration Services, in an email. "Immigrant community members will be placed at risk of mandatory deportation, regardless of how long they have been in the US or their ties to US citizens or LPR family members. With more arrests, there will also be more detentions in ICE. There is no statewide system for these individuals to receive pro bono legal counsel even when they have valid defense in removal proceedings. Further this will place a greater strain on the limited pro bono services that exist."

Jorjani said Proposition 36 would make it harder for people to claim protection under SB 54. California lawmakers passed this law in 2017, barring law enforcement in the state from aiding in immigration enforcement unless a criminal met certain conditions. A federal judge upheld that law against a challenge from the Trump administration.

She added that the initiative would result in more people being found guilty of aggravated felonies eligible for deportation. First, it could result in people being sentenced to a year or more for shoplifting, making them vulnerable to deportation even if they don't end up having to serve the time. It could also make more people deportable based on drug possession if they have certain prior convictions.

Jorjani said this would mean that an immigrant convicted of a serious felony in the U.S. would not have the opportunity to argue they face persecution or death if returned to their country of origin.

"With just one aggravated felony on your record, you won't have the opportunity to ask for asylum," she said. "You don't even get to apply."