Recently, a fundamental due process issue affecting many immigrant communities has caught the media spotlight — the issue of the immigration consequences of 365-day sentences for gross misdemeanor convictions. Because of quirks in the relationship between our broken immigration system and criminal law, many immigrants convicted of these relatively minor crimes face the threat of deportation because of their conviction. This is so even if they have been living in the U.S. as permanent residents for long periods of time, and even if they have families and children who are U.S. citizens.
Our judiciary should lead the effort to exercise discretion in cases like these, and impose a sentence of 364 days rather than 365 — a sentence that would not lead to automatic deportation proceedings.
Of the many troubling flaws in our immigration system, “aggravated felony” deportation is among the most glaring from a due process standpoint. Those who come to the U.S. as immigrants but have not yet attained citizenship have long been deportable upon conviction of a serious crime. In 1996, however, the crimes considered “aggravated felonies” under immigration law were expanded to include even relatively minor offenses such as shoplifting or assault. In fact, any crime for which a sentence of one year or longer was imposed would result in the harshest possible consequence under immigration law — that of virtually automatic deportation, and therefore permanent separation from the immigrant’s family and community.
Thanks to this change, crimes for which deportation can occur are now far removed from the category of “aggravated felonies” under criminal law — the kinds of serious crimes for which deportation was originally contemplated. And the harsh consequence applies even to longstanding, legal permanent residents, even to first-time offenders, and even if the judge suspends the entire sentence and the immigrant does not go to jail at all.
This is why the role of the judge in an immigrant’s criminal case is so important. Although Washington law allows the sentence for gross misdemeanor convictions to be anywhere from 0 to 365 days, some judges rightly have recognized that deportation is an unduly harsh punishment for such offenses. So they have refrained from imposing the maximum 365-day sentence. Instead, they have imposed a sentence of 364 days or less (often at the request of defenders, and some prosecutors, who are familiar with immigration law and its interaction with criminal law).
These judges recognize not only that deportation might be a central result of a criminal conviction, but also the importance of keeping the consequences of that conviction proportional to the crime committed. This is a fundamental principle of due process protection. The judge is still able to exercise his or her judicial discretion to choose a sentence that fits the crime and all the circumstances the individual presents. And the immigrant is still punished for the crime — he or she serves virtually the same sentence, but without suffering deportation.
The U.S. has deported hundreds of thousands of immigrants under the 1996 laws — many of them first-time offenders convicted of low-level theft or assault convictions. For those individuals, the impact of their minor offenses could not be more serious — they have left behind homes, businesses, communities, and families with one or more U.S. citizen children, who will now be condemned to growing up without a parent. A bedrock principle of justice is that punishment should fit the crime. Neither justice nor the social health of our communities are being served by deporting these immigrants.
I encourage judges to think back to why we have our criminal laws in the first place. We want to deter crime and fairly punish guilty individuals, but also allow them a chance to reenter society and contribute once they have served their sentence. Many individuals convicted of low-level crimes are individuals who simply made a one-time mistake — and do not deserve the harsh consequence of permanent separation from their families.
The U.S. is a nation of second chances. Let’s make sure we apply that principle to immigrants through the discretion of our judges.