Could California's Prop. 36 crime measure increase deportations?

Lea this historia en Español

A tough-on-crime ballot measure expected to pass could lead to more Californians being deported, immigration advocates warn.

Proposition 36 would reclassify certain drug and theft offenses as felonies, meaning immigrants convicted of those crimes would be more likely to face deportation if they have a case in immigration court, advocates said.

“It is not an understatement to say that more Californians, including green card holders and refugees, will be deported if Prop. 36 passes,” said Grisel Ruiz, senior attorney at the Immigrant Legal Resource Center. “The impact will be quite catastrophic.”

In California, where nearly half of all children have at least one immigrant parent, advocates fear the measure could have widespread impacts on families and communities. The initiative on the Nov. 5 ballot would allow prosecutors to impose harsher and longer sentences by using prior convictions to extend sentences.

“If Prop. 36 passes, more Californians, including green card holders, including refugees, will be deported.”

Grisel Ruiz, senior attorney at the Immigrant Legal Resource Center

Under this new system, a simple drug possession charge with a prior immigration court conviction could be considered a “serious felony” conviction, which carries the harshest penalties. In almost all cases, a person in immigration court with a “serious felony” on their record faces a lifetime of deportation and loses all chance of immigration relief, Ruiz said.

Yolo County District Attorney Jeff Reisig, a supporter of Prop. 36, said the measure does not increase risks to immigrants any more than a package of retail and property crime bills that the Legislature recently passed and the governor signed.

“For me, the immigration argument is just a diversionary tactic because prosecutors have already demonstrably worked to mitigate undue immigration consequences,” said Reisig.

The retail crime package makes certain thefts criminal offenses but does not address drug offences.

In general, supporters of Prop. 36 have described concerns that the measure would have devastating consequences for low-level crimes as overblown. It is said that the measure is primarily aimed at adult repeat offenders. The state's nonpartisan Legislative Analyst's Office predicts the initiative would add several thousand to California's prison population of 90,000 inmates.

Immigration courts can consider crimes “dismissed.”

The goal of Prop. 36's harsher penalties is to reduce drug-related crimes by steering repeat offenders toward treatment rather than prison; Once treatment is complete, defendants can have their charges dismissed.

But federal immigration courts typically do not recognize dismissals that follow the successful completion of such diversion programs, Ruiz said.

Reisig disputed this, saying the treatment meant the conviction would be “completely expunged” and that there was “no risk of immigration consequence.”

“For me, the immigration argument is just a diversionary tactic.”

Yolo County District Attorney Jeff Reisig

Devin Chatterton, senior attorney at the Immigrant Defenders Law Center, said people are often confused and unaware that relief granted after a conviction in a state criminal court will not be recognized in immigration court.

“Even if the criminal judge exercises some leniency or discretion, that discretion is not factored into the immigration process,” she said. “That’s all well and good for the criminal court. But immigration courts do not recognize a range of rehabilitative and exculpatory measures, such as release in state court.”

Chatterton said the results had a devastating impact on people, families and the community: “This is how families are separated.” People lose their parents. People lose their brothers or sisters, their mothers, their fathers. It’s really heartbreaking.”

Some immigrants told CalMatters they are concerned about the impact of Prop. 36.

“It's scary,” said Jessica Sanchez, 29, whose mother brought her to the United States as a baby without government permission. Her family fled violence-torn Michocán, Mexico. Sanchez has been incarcerated in the past. She now works at Homeboy Industries, a Los Angeles-based nonprofit focused on gang rehabilitation and reentry.

Although she is not facing deportation due to previous convictions under Prop. 36, Sanchez said it is troubling to see the progress California has made in protecting immigrant communities potentially being reversed.

“To see that with one vote, in one year, everything can be set back 10 years – that's scary, because how long did it take us to get here,” she said. “It’s scary because people are losing hope.”

Strong voter support

Prop. 36 is officially titled the Homelessness, Drug Addiction and Theft Reduction Act and polls show it enjoys strong voter support despite opposition from California Gov. Gavin Newsom.

Earlier this month, UC Berkeley's Institute of Governmental Studies found that 60% of likely voters support Prop. 36, with most supporters citing the measure's harsher penalties for repeat offenders as a reason. A new poll of more than 1,650 registered voters in the traditionally left-leaning Bay Area by the Bay Area News Group and Silicon Valley Joint Venture found that 70% of respondents supported Proposition 36, while 20% opposed it.

The measure also has support from the Democratic mayors of San Francisco, San Jose and San Diego. The California Legislative Analyst's Office estimated it could cost the state “tens of millions of dollars to a few hundred million dollars per year,” plus tens of millions of dollars at the local level.

Proponents of Prop. 36 say the measure will address some of the shortcomings of a previous ballot initiative, Proposition 47. Approved by voters ten years ago, Prop. 47 aimed to reduce severe prison overcrowding in California by classifying six felony, theft and drug crimes as misdemeanors, including shoplifting and simple drug possession. The resulting cost savings went toward drug and mental health treatment, as well as services for crime victims and at-risk students. Since then, participation in California's optional drug courts, which offer treatment as an alternative to sentencing, has plummeted. Meanwhile, prosecutors, police and major retailers like Walmart and Target blamed the law for increases in property crime and homelessness.

But Prop. 36 can have life-changing consequences for anyone who is not a U.S. citizen, including long-time permanent residents, green card holders and DACA recipients, even for normally minor crimes.

Currently, stealing items valued at $950 or less is generally a misdemeanor in California. Prop. 36 would make this crime a felony for people who have been convicted two or more times in the past of certain related crimes, such as shoplifting, burglary or carjacking. The penalty, excluding any consequences in immigration court, would be up to three years in county prison or state prison.

In California, where one in four people is foreign-born, immigrants are far more likely to experience poverty and lack full access to social programs. The poverty rate for foreign-born Californians was 17.6%, compared to 11.5% for U.S.-born residents; Poverty among undocumented immigrants was 29.6%. Additionally, according to Nourish California, an organization that fights hunger, 41% of undocumented children and young adults ages 0 to 26 in California live in poverty.

Sanchez said the state should address this poverty instead of trying to combat the problem through the criminal justice system.

“I'm not saying stealing is the way to go, but what would you do if you were hungry? Sanchez said. “Or if you had children at home who were hungry?”