California Bills Begin to Restore Fairness to Immigrants Caught up in Criminal Justice System

Written by on September 30, 2016 in Enforcement, State by State with 0 Comments

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California continues to lead the way on integrating its large immigrant community and protecting immigrants from the extreme consequences of federal immigration laws.

On September 28, 2016, Governor Jerry Brown of California signed three bills into law that will restore some fairness to a system that is overly punitive towards immigrants who have been touched by the criminal justice system and face federal consequences, including deportation. These bills include:

  • SB2792. Known as the TRUTH Act, this law provides due process for immigrants held in local jails. It requires that if Immigration and Customs Enforcement (ICE) places a detainer (a request from the federal government that the jail hold someone, transfer someone, or provide notice of relief) on someone in a California jail, the law enforcement agency must also provide the jailed individual with a copy of the detainer document. Having notification of a detainer request will allow immigrants and their legal counsel to more effectively protect their rights. The TRUTH Act also requires law enforcement agencies provide any immigrant whom ICE wants to interview with a written consent form that explains the purpose of the interview, that the interview is voluntary, and that he or she may decline to be interviewed, or may have an attorney present. Finally, the new law allows local communities to hold law enforcement agencies accountable and have oversight over their relations with ICE. Starting in 2018, the TRUTH Act requires annual public review and input on local dealings with ICE.
  • AB813 will allow the state’s criminal courts to hear challenges to the legal validity of a criminal conviction after the case has expired and the person is no longer in custody.Under AB813, if immigrants have claims of innocence, or if their attorneys failed to properly warn them about the immigration consequences of a plea deal, they can challenge their convictions. Forty five states now allow people who are no longer in criminal custody to challenge unlawful convictions.
  • SB1242. Under federal law, a conviction for a “crime involving moral turpitude” can have adverse immigration consequences if it involves a potential sentence of 365 days – even if the immigrant was never actually sentenced. In January 2015, California’s law changed the maximum possible punishment for a misdemeanor from 365 to 364 days, thereby avoiding the federal consequences. SB1242 makes that change retroactive in two ways. First, every California misdemeanor conviction that had a potential sentence of 365 days now has a potential 364 day punishment. This change will automatically apply to all misdemeanors as of January 1, 2017. Second, persons who were sentenced to a year in jail for a misdemeanor prior to January 1, 2015 can apply in criminal court to have their sentence reduced by one day. As a result of SB1242, as of January 1, 2017, no California misdemeanors will have a potential for a 365 day sentence.

According to Angela Chan of Advancing Justice – Asian Law Caucus, “The TRUTH Act provides our diverse immigrant community members with the right to know and the right to say no to abusive ICE practices. At a time when the national conversation on immigration has reached a fevered pitch, California leads the way by building bridges instead of walls.”

Unfortunately, however on the same day he signed these three laws, Governor Brown also vetoed the “Dignity Not Detention Act” which would have prohibited local governments from contracting with private companies seeking to operate immigration detention facilities. It would have also required that localities that hold immigrants in a local detention facility only do so if the contract requires it to adhere to ICE’s Performance-Based National Detention Standards. And it would have offered additional protections for LGBTQ detainees. Advocates in California are understandably troubled about the veto, and will continue to push for these reforms.

Photo by Neon Tommy.

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