By Phillip Smith
As President Trump ratchets up the machinery of mass deportation, supporters of a humane, comprehensive approach to immigration are seeking ways to throw sand in its gears. When mass deportation is touted because of the “criminality” of those targeted, one solution is to reduce criminalization, which is not to turn a blind eye to violent or dangerous criminals, but to recognize that we live in an over-criminalized society. That means school kids can now be arrested for behavior that would have sent them to the principal’s office in years past (especially if they’re a certain color). The U.S. also generates the world’s largest prison-industrial complex, and has criminalized tens of millions of people for the offense of simply possessing a certain plant, and millions more for possessing other proscribed substances.
While Trump talks about “bad hombres” as he ramps up the immigration crackdown, data shows that the net of criminality used to deport not just undocumented workers, but also legal immigrants and permanent resident aliens, is cast exceedingly wide. It’s overwhelmingly not gang members or drug lords who are getting deported, but people whose crimes include crossing the border without papers, as well as traffic and minor drug offenses.
The report Secure Communities and ICE Deportations: A Failed Program, which examined Immigration and Customs Enforcement deportation records, found that the top three “most serious” criminal charges used to deport people and which accounted for roughly half of all deportations were illegal entry, followed by DWI and unspecified traffic violations.
The fourth “most serious” criminal charge used to deport people was simple marijuana possession, with more than 6,000 people being thrown out of the country in fiscal years 2012 and 2013, the years the study covered. Right behind that was simple cocaine possession, accounting for another 6,000 in each of those years. “Other” drug possession charges accounted for nearly 2,500 deportations each of those years.
Nearly 3,000 people a year were deported for selling pot, and more than 4,000 for selling cocaine, but only about 2,000 a year for the more serious offense of drug trafficking, accounting for a mere 1% of all deportations in those years.
This has been going on for years. In the same report, researchers estimated that some 250,000 people had been deported for drug offenses during the Obama administration, accounting for one-fifth of all criminal deportations. Now, the Trump administration gives every indication it intends to be even tougher.
In light of the massive use of drug charges to deport non-citizens, drug reform takes on a whole new aspect. Marijuana decriminalization and legalization may not generally be viewed through the lens of immigrant protection, but they shield millions of people from drug deportation in those states that have enacted such laws. Similarly, efforts to decriminalize drug possession in general are also moves that would protect immigrants.
Now, legislators and activists in vanguard states are adopting prophylactic measures, such as sealing marijuana arrest records, rejiggering the way drug possession cases are handled, and, more fundamentally, moving to decriminalize pot and/or drug possession. In doing so, they are building alliances with other communities, especially those of color, that have been hard hit by the mass criminalization of the war on drugs.
In California, first decriminalization in 2011 and then outright legalization last year removed pot possession from the realm of the criminal, offering protection to hundreds of thousands of immigrants. But the California legalization initiative, Proposition 64, also made the reduction or elimination of marijuana-related criminal penalties retroactive,meaning past convictions for marijuana offenses reduced or eliminated can be reclassified on a criminal record for free. Having old marijuana offenses reduced to infractions or dismissed outright can remove that criminal cause for removal from any California immigrant’s record.
Across the county in New York, with a charge led by the state legislature’s Black, Puerto Rican, Hispanic and Asian Caucus, the state assembly voted in January to approve AB 2142, which would seal the criminal records of people who had been unjustly arrested for simple possession of pot in public view, a charge police used to still bust people for marijuana after it was decriminalized in 1977. Like the Prop 64 provision in California, this measure would protect not only minority community members in general—who make up 80% of those arrested on the public possession charge—from the collateral consequences of a drug conviction, but immigrants in particular from being expelled from their homes.
“A marijuana conviction can lead to devastating consequences for immigrants, including detention and deportation,” said Alisa Wellek, executive director of the Immigrant Defense Project. “This bill will provide some important protections for green card holders and undocumented New Yorkers targeted by Trump’s aggressive deportation agenda.”
“Sealing past illegitimate marijuana convictions is not only right, it is most urgent as the country moves toward legalization and immigrant families are put at risk under our new federal administration,” said Kassandra Frederique, New York state director for the Drug Policy Alliance. “Comprehensive drug law reform must include legislative and programmatic measures that account for our wrongheaded policies and invest in building healthier and safer communities, from the Bronx to Buffalo, Muslim and Christian, U.S.-born and green card-holding.”
Companion legislation in the form of Senate Bill 3809 awaits action in the Senate, but activists are also pushing Gov. Andrew Cuomo to include similar language as part of his decriminalization proposal in state budget legislation, opening another possible path forward.
“In New York State 22,000 people were arrested for marijuana possession in 2016. The misdemeanor charge for public view of marijuana possession gives those people convicted a criminal record that will follow them throughout their lives, potentially limiting their access to education, affecting their ability to obtain employment, leading to a potential inability to provide for their families,” said Sen. Jamaal Bailey, author of the Senate bill.
“Furthermore, and even more problematic, there exist significant racial disparities in the manner that marijuana possession policy is enforced. Blacks and Latinos are arrested at higher rates despite the fact that white people use marijuana at higher rates than people of color. Responsible and fair policy is what we need here,” Bailey added. “We must act now, with proactive legislation, for the future of many young men and women of our state are at stake here.”
Meanwhile, back in California, Assemblywoman Susan Talamantes Eggman (D-Stockton) has reintroduced legislation explicitly designed to shield immigrants from deportation for drug possession charges, as long as they undergo treatment or counseling. Under her bill, Assembly Bill 208, people arrested for simple possession would be able to enroll in a drug treatment for six months to a year before formally entering a guilty plea, and if they successfully completed treatment, the courts would wipe the charges from their records.
The bill would address a discrepancy between state law and federal immigration law. Under state drug diversion programs, defendants are required to first plead guilty before opting for treatment. But although successful completion of treatment sees the charges dropped under state law, the charges still stand under federal law, triggering deportation proceedings even if the person has completed treatment and had charges dismissed.
“For those who want to get treatment and get their life right, we should see that with open arms, not see it as a way of deporting somebody,” Eggman said.
Eggman authored a similar bill in 2015 that got all the way through the legislature only to be vetoed by Gov. Jerry Brown, who worried that it eliminated “the most powerful incentive to stay in treatment — the knowledge that the judgment will be entered for failure to do so.”
In the Trump era, the need for such measures has become even more critical, Eggman said.
“It might be a more complex discussion this year, and it’s a discussion we should have,” she said. ”If our laws are meant to treat everyone the same, then why wouldn’t we want that opportunity for treatment available to anyone without risk for deportation?”
Reforming drug laws to reduce criminalization benefits all of us, but in the time of Trump, reforming drug laws is also a means of protecting some of our most vulnerable residents from the knock in the night and expulsion from the country they call home.