A child’s age can be central to a sex crime. It helps establish what happened, identify the victim’s vulnerability, and determine the consequences for the person responsible.
But a guide for Bronx prosecutors reportedly offered another reason to consider a child’s age: keeping it out of the offense a defendant pleads to could help the defendant avoid deportation.
From the New York Post:
Not even cases involving child sex crimes are off-limits — with Clark’s office asking assistant DAs in a 2019 guide to “immigration-conscious plea bargaining” to “[o]ffer something that does not have the child’s age as an element of the crime.”
Meanwhile, in Queens, DA Melinda Katz has told her prosecutors to “exercise extreme caution” and “not get caught up in the label of [f]elonies, [m]isdemeanors” for illegal aliens, according to the report published five months after the committee sent requests for information on the Big Apple’s so-called “sanctuary” policies to prosecutor’s offices in all five boroughs, as well as the NYPD and Department of Correction.
According to the report, the NYPD has received nearly 10,000 detainer requests from Immigration and Customs Enforcement (ICE) for illegal aliens charged with crimes in the past 12 months — and honored none.
Let that sink in.
A prosecutor’s office, entrusted with seeking justice for victims, circulated advice on how to structure a plea so a defendant’s immigration problems might become a little less troublesome.
Where, exactly, does the child fit into this calculation?
A House Judiciary Committee report examines immigration-related practices in the offices of New York City’s district attorneys. Among the material cited is a 2019 Bronx guide on immigration-conscious plea bargaining. In cases involving children, it advised prosecutors to offer a plea deal on an offense that didn’t include the child’s age as an element of the crime, according to the article’s description of the report.
The distinction is important: The reported guidance concerns the elements of the offense used in a plea. It doesn’t establish that prosecutors were instructed to erase a child’s age from every document in a case. Nor does publicly available material identify a particular child sex case in which the instruction was used.
Even so, why should avoiding deportation be part of the exercise? Prosecutors have plenty to consider when evaluating a plea: the evidence, the victim, the appropriate punishment, and the chances of securing a conviction. Preserving a defendant’s ability to remain in the United States shouldn’t be a prize tucked into the negotiations.
The reported Bronx guidance didn’t stop there. Prosecutors were also encouraged to keep a domestic relationship out of the record of conviction in domestic violence cases, and to consider stalking charges without certain elements that could bring immigration consequences.
A woman allegedly beaten by her partner might reasonably expect prosecutors to focus on the violence. Instead, the guide reportedly gave them a reason to consider how the relationship appeared in the conviction record.
What a comforting set of priorities.
In Queens, District Attorney Melinda Katz’s own office describes what happened in other cases. During her first year in office, it says, she agreed to reduce or vacate the convictions of 21 defendants to avoid immigration consequences that weren’t anticipated when they pleaded guilty. Some were allowed to plead again to lesser offenses.
The office doesn’t identify the offenses or establish that all 21 defendants were in the country illegally. Those details matter, and New Yorkers deserve to know them. What the office does say is revealing enough: Its actions helped defendants avoid immigration consequences through valid guilty pleas.
Supporters can call deportation a harsh collateral consequence. Victims might call it a foreseeable result of committing a crime while subject to immigration enforcement. Either way, the public should know when prosecutors make avoiding it part of the deal.
Another question: What happens when immigration authorities release people who are then arrested again?
In a separate 2018 review, ICE said nearly 40 people were arrested again by local police after being released from New York City custody. One man was arrested on an assault charge, released, and later arrested on a robbery charge, ICE said.
Each of us, especially New Yorkers, deserves current, case-specific answers. How often were immigration-safe pleas offered? What were the original allegations? How many defendants were later arrested, and for what?
A prosecutor’s first responsibility is to seek justice. If officials adjust pleas to help defendants avoid immigration consequences, they owe victims and the public a full accounting.
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