About a month ago, both my colleague Art Arthur and I published blog posts dealing with a decision by Attorney General (AG) William Barr to certify to himself for decision an immigration case devolving around whether state courts can properly engage in post-conviction modifications of sentencing when the purpose of the modifications is to aid a convicted alien in evading the deportation consequences of the original sentence, see here and here.
Since I wrote my piece, an astute reader has been corresponding with me intermittently with concrete examples of everything that is wrong with such a lopsided, disparate notion of justice. There are a host of them going on in states throughout the nation.
I had initially thought to share several cases, but on reflection, let me encourage readers to do a little internet searching on your own instead. For instance, just key in "alien sentence commutation New York" or "alien pardon California", or "alien resentencing Rice County Minneapolis" to suggest just a few. Feel free to substitute those particular states or counties or municipalities with others as you wish. You're almost certain to get several hits to examine. When you look at the cases involved, you'll see that most of the crimes are extremely serious, and the aliens involved hail from all over the globe.
Many of the articles that discuss their cases are written in the context of "human interest" stories that depict the government as hardhearted, and all of these individuals as rehabilitated, family-loving [usually] men who had a brief lapse. I will leave readers to consider the merits of such stories on your own, but when you do, take note of how often the crimes include violence against the person, the length of the original sentences involved, and how frequently we get a peek behind the screen with comments like: "To be honest, I wasn't always the best husband." Do these things, when considered collectively, bespeak kind, gentle people who strayed only slightly from the path—or are the aliens' recounting of their stories more reminiscent of the type of jailhouse conversion that often attends to a convict just before his parole hearing—or, in this case, someone struggling to escape the consequences of deportation at any cost?
Here's the deeply troubling heart of the matter: Actions taken by the judiciary and the executive branches of state governments designed solely to defeat the workings of federal deportation laws only foster an institutionalized normalization of disparate justice.
Western civilization has always encouraged us to believe in the notion of "blind" justice: equal justice under the law for all, no exceptions. Many famous statues and paintings depict this notion literally, as do the bas-reliefs carved into hundreds, if not thousands, of courthouses throughout the country. But there is nothing equal about actions that are clearly intended to favor a class of convicted individuals (deportable aliens) over all others similarly situated within the justice system.
In justifying themselves, state judges, governors, and officials often invoke "family unity" to explain their actions, but every day throughout the United States, citizens are separated from their families when sentenced to prison with potentially disastrous consequences for the families left to fend for themselves.
These same governmental authorities also justify their actions with assertions that the inflexibility of the immigration laws leaves them no choice. This too is untrue. Congress has built into the Immigration and Nationality Act a variety of forms of relief, including waivers of inadmissibility (which also apply in the deportation context) for several grounds of removal, as well as cancellation of removal, withholding of removal, and even the Convention Against Torture, which forbids removal to a country where an individual may be subjected to torture or other inhumane treatment. It is closer to the truth to say that they simply prefer to apply their own standards rather than acknowledge Congress' preeminent authority to describe the terms and conditions under which an alien may be forgiven his crimes and permitted to remain in the United States in lieu of removal.
Such actions, and the attitudes behind them, are troubling, even abhorrent, on several levels. State judicial and executive officials are attempting to subvert the processes of federal law. They would not tolerate such conduct in proceedings in their own systems and, above all else, they should recognize that actions which breed institutional contempt for the law are corrosive, and will in the end redound to their own deficit.
A state judge or prosecutor—or, for that matter, a pardon or commutation board or state governor—has no business substituting his/its judgements on the propriety of orders of removal against alien criminals, especially, but not exclusively, after the fact. That's what Congress is for in the first instance, and why the federal immigration and appellate tribunals exist in the second instance.