Acting Brooklyn District Attorney Eric Gonzalez announced on Monday a set of new policies that his office would follow when prosecuting immigrant New Yorkers to help them avoid deportation for low-level offenses like marijuana possession and petit larceny.
In a memo, obtained by the Voice, that was distributed to all assistant district attorneys in New York’s most populous borough, Gonzalez detailed a policy that would make prosecutors consider the immigration consequences of certain charges and, where possible, reach a plea deal with an immigrant where “an immigration-neutral disposition” could be reached.
The policy, which also mandates training in immigration law for prosecutors, would endeavor to shield immigrants hauled into the criminal justice system from facing further punitive measures by offering alternate charges instead of those that could lead to deportation.
“I am committed to equal and fair justice for all Brooklyn residents – citizens, lawful residents, and undocumented immigrants alike,” Gonzalez said while announcing the new policy. “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 decision comes after months of denials by City Hall that low-level crimes like turnstile jumping or marijuana possession could lead to deportation, as the NYPD continues to aggressively police low-income communities through a practice known as “broken windows.” Mayor Bill de Blasio and his aides have viewed such deportations as not “real scenarios” and stressed that “nobody is getting deported for jumping a turnstile” despite overwhelming evidence to the contrary.
The new policy by the Brooklyn D.A.’s office runs counter to City Hall’s explanations, and puts the prosecutor’s office in a position of trying to defray the high social costs of broken windows policing while still pursuing cases for the low-level offenses that the NYPD keeps handing them.
In a statement to the Voice, a City Hall spokesperson said that Acting District Attorney Gonzalez’s new policy “is completely consistent with the city’s current policies protecting immigrant communities. The city does not cooperate with federal immigration enforcement for low-level offenders and supports initiatives designed to keep families intact, including safe alternatives to incarceration for low-level offenders and a shift away from arrests in favor of summonses.”
“The district attorney’s job, at the end of the day, is public safety, but there’s two ways of reaching that goal. One of those ways comes with immigration consequences and one doesn’t,” said Camille J. Mackler, the director of legal initiatives at the New York Immigration Coalition, which consulted with the D.A.’s office on the new policy. “What [Acting D.A. Gonzalez] is doing without saying it is what we’ve been pushing for for a long time — keeping the criminal justice system and the immigration system separate. These shouldn’t be conflated as much as they have been, because our immigration laws are just so unforgiving.”
Acting District Attorney Gonzalez took over the position following the death of first-term District Attorney Ken Thompson last year, and is currently in the midst of a hotly contested campaign that has served as a referendum on broken windows, which Gonzalez says “does not keep us safe.”
“This is welcome news, but I don’t think it’s a novel concept,” said Jordan Wells, an attorney for the New York Civil Liberties Union. “This is something for years that defender offices and defense attorneys have done, which is pursuing pleas and outcomes for their clients that are most protective of their interests. What this announcement means is that they’re going to have a partner on the other side that will have some sensitivity to the fact that they’re supposed to be distributing justice equally, and understanding that deportation needs to be considered as part of the calculus.”
The obligation of defense attorneys having to inform their noncitizen clients about the deportation risks of guilty pleas was first established in 2010 in the Supreme Court case Padilla v. Kentucky. But prosecutors were not mandated to consider the deportation risks as part of their charging decisions.
The Brooklyn Defender Services, a public defender office in Brooklyn, applauded the move by Gonzalez and appealed to the D.A.’s office to use them as a resource.
“Brooklyn Defender Services has a robust team of specialized attorneys who focus on immigration consequences and enforcement trends — a moving target that requires up-to-date knowledge of the law and a deep understanding of the specific facts of each noncitizen client’s immigration and criminal history, an analysis that cannot be distilled to a chart or a formula,” said Nyasa Hickey, a supervising attorney of immigration practice with the organization.
In addition to the new training for assistant district attorneys, the Brooklyn D.A.’s office will also hire two immigration attorneys to join the staff, signaling something of a new trend for D.A.s, who are not known for their sensitivity toward the consequences of their prosecutions. Last month, the manhattan district attorney, Cyrus Vance, created a new position known as the Collateral Consequences Counsel, which would “advise on available dispositions which reduce or eliminate an individual defendant’s risk of deportation.”
“We applaud Acting D.A. Gonzalez,” a spokesperson for D.A. Vance told the Voice in an email. “District attorneys have a role to play in protecting all New Yorkers — including the defendants we charge — from unfair and unnecessary deportation.”
City Hall, which has touted the passage of the city’s detainer law (which effectively keeps Immigration and Customs Enforcement officers out of city jails) as a way to shield immigrant New Yorkers in the city’s criminal justice system from deportation, remains fully focused on pursuing broken windows policing, no matter the immigration consequences for New Yorkers. Last year, the NYPD’s own inspector general dismissed the strategy as having no discernible effect on more serious crimes.
“Nothing going on now is changing our resolve to enforce quality-of-life policing,” the mayor said at a press conference in March, where he was asked by several reporters about the impact of broken windows on New York City’s immigrant community.
Last year, the NYPD arrested more people for marijuana possession than the year before. In 2015, the largest number of arrests for any offense was for fare evasion, with over 29,000 arrests. Both of these low-level offenses cause serious deportation risks for immigrants. All of them involve being fingerprinted by the NYPD, who then sends the fingerprints to ICE.
“Ultimately I believe [City Hall has] already come around to the idea that there are these consequences for low-level arrests,” said Mackler, the NYIC attorney. “I don’t know if it was a learning curve, or now that there’s no longer priorities for how ICE will carry out its enforcement, now that we can’t rely on that, City Hall will go back and reassess their everyday strategies toward immigrants. This could definitely be one of them.”