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Brooklyn ADA Issues Crime Policy That Could Privilege Immigrants Over Citizens

On Monday, Acting Brooklyn District Attorney Eric Gonzalez announced a new policy to defend illegal immigrant and non-citizen criminals from potential immigration consequences for their convictions. While the policy might prevent unnecessary deportations, it also has the potential to privilege non-citizens over citizens when it comes to criminal prosecution.

"I am committed to equal and fair justice for all Brooklyn residents — citizens, lawful residents and undocumented immigrants alike," Gonzalez said in a statement. "Now more than ever, 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."

Gonzalez's office has hired two immigration attorneys to train staff on immigration issues, and to advise prosecutors how to avoid opening the door to deportation when making plea deals and sentencing recommendations. Gonzalez emphasized that his office is "not seeking to frustrate the federal government's function of protecting our country by removing non-citizens whose illegal acts have caused real harm and endangered others."

"We will not stop prosecuting crimes, but we are determined to see that case outcomes are proportionate to the offense as well as fair and just for everyone," the acting defense attorney concluded.

Cases like that of Nahidh Shaou illustrate how criminal convictions — despite a record of distinguished service in the U.S. Army and a record of being a "model inmate" — can lead to likely deportation which, in the case of Christians from Iraq like Shaou, is really a death sentence.

Is it really the Brooklyn ADA's job to try to thwart federal immigration law, however? If the law is too strict, Congress should alter it.

Even if these kinds of reforms are justified to help people like Shaou, they need to avoid giving illegal aliens a privileged position over legal residents, or indeed over U.S. citizens. One of the provisions in ADA Gonzalez's new policy seems to open the door for perverse injustice — treating non-citizens better than citizens when it comes to criminal prosecution:

To reach an immigration-neutral disposition, ADAs may consider alternative offenses the defendant can plead to as well as reasonable modifications to the sentence recommendation. When possible, the alternative should be similar in level of offense and length of sentence to that offered to a citizen defendant, while the charge may be different. For example, a plea to a misdemeanor trespass may be offered when appropriate instead of a misdemeanor drug offense. In certain instances, it may be appropriate to offer a non-citizen defendant a plea for a lesser offense in light of the disproportionate immigration consequences a higher level offense may result in.