A common avenue of attack against criminal-justice reform, particularly its mandatory-minimum provisions, is to invoke the bogeyman of illegal immigration. The argument generally suggests that incarcerated aliens would receive some sort of windfall from the legislation.
One frequently touted statistic holds that, of the 514 federal inmates who were serving a sentence for “simple possession” as of March 2016, 95.5 percent were non-citizens (which would leave just 24 U.S. citizens serving a federal sentence for simple possession).
On its face, the argument appears to suggest that, if Congress passes sentencing reform, illegal aliens would be released onto American streets. Dissecting this argument, one sees various points at which it breaks down.
To begin, when making a decision about policies that affect thousands of people – not only inmates, but also their families – citing a group of just 514 inmates should not carry tremendous weight.
The argument also implies that criminal-justice reform is inadvisable if it would in any way benefit illegal aliens. But the U.S. Constitution is clear that aliens enjoy the Equal Protection clause – “nor shall a state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Further, the Supreme Court held in 2001’s Zadvydas v. Davis decision that even illegal aliens are afforded the same protections as citizens.
We don’t give illegal aliens harsher sentences for drug trafficking, so why would they not receive sentencing relief?
Most importantly, the argument ignores the immigration code’s mandatory-detention requirements. Under the Immigration and Nationality Act, noncitizens with certain criminal convictions must be detained by Immigration and Customs Enforcement agents upon their release. They aren’t entitled to bond hearings before immigration judges and must remain detained during their removal proceedings and through their deportation.
The INA makes crystal clear that the attorney general “shall take into custody any alien” who commits certain enumerated acts “when the alien is released.” Aliens who commit one of the triggering crimes never hit the streets, because they literally go from criminal prison to immigration detention.
The INA is also very broad in defining triggering crimes. Under Section 212(a)(2), a violation “relating to a controlled substance” triggers mandatory detention, which would cover the 490 “noncitizens” in prison for simple possession. It would also cover all other drug convictions committed by aliens.
Section 237(a(2)(A)(i) goes further still, requiring mandatory detention for those convicted of a “crime of moral turpitude.” What constitutes a crime of moral turpitude is somewhat nebulous, but it’s safe to say the category covers crimes with any sort of “evil intent,” from the obvious murder, rape and assault to shoplifting, tax evasion and perjury.
While the question of illegal immigration is an important one, the reforms to our criminal-justice system currently under consideration would not affect how that issue is handled.