Virginia’s System of Waiving Jail Time and Legal Counsel for Minor Offenses Boosts Deportations

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What may have started as a well-intentioned plan to save the state of Virginia money and let low-level lawbreakers off the hook has turned into a nightmare for Prince William County’s immigrant community.

Since 2010, prosecutors across Virginia have automatically waived jail time for minor misdemeanors, allowing judges, in turn, to waive defendants’ right to a legal counsel. Under this new system, those accused of minor offenses, like marijuana possession, can simply plead guilty, pay small fines or comply with light penalties, and return to their lives as usual.

Not so for 19-year-old Luis Bladilir Lopez and countless other immigrants accused of minor crimes in Prince William County and across the United States. As the Washington Postrecently reported, Lopez pled guilty to a misdemeanor marijuana charge last year under this system. Without the counsel of a lawyer, he had no way of knowing that his guilty plea would launch him into harsh federal immigration proceedings. Within two months, he was deported. He was undocumented and had been brought to the U.S. at age of 12.

Is Virginia trying to dupe its immigrant population? Or is the state judicial system, as Prince William General District Court Judge William E. Jarvis asserts, simply “slow to change”? It’s hard to tell, given the breakneck speed of change in federal immigration law and enforcement strategy since the mid-2000s. In practice, “slowness” may result in a cruel and unconstitutional attack on immigrants.

For the past two decades, the federal government has been progressively toughening charges and penalties against immigrants who violate U.S. law. What were once considered minor misdemeanors (theft of a $10 DVD, hair pulling in a fight) are now treated as “aggravated felonies,” a charge that triggers deportation for all non-citizen immigrants, and that blocks judges from pardoning defendants for even the most compelling individual circumstances.

Recent innovations in federal immigration enforcement are also funneling an unprecedented number of immigrants into the U.S. criminal justice and prison systems. In a 210-mile border region of Texas, for example, those who enter the country without documentation and are apprehended are now prosecuted in the criminal justice system through Operation Streamline, and are subject to up to 18 months of jail time.  Those who re-enter after having been deported are labeled felons and can face a sentence of up to 20 years in federal prison before they are deported again. Through partnerships between the federal government and local and state law enforcement agencies, like Secure Communities and 287(g), immigration enforcement has shifted from being almost solely a federal responsibility to relying deeply on police officers and sheriff’s deputies around the country. These partnerships incentivize racial profiling and have led to the massive increase of deportations to more than 400,000 in 2012.

Through Prince William County’s controversial 2007 law, which required local police to inquire about immigration status; through Virginia’s participation in 287(g); and through more subtle mechanisms like Lopez’s plea bargain, Virginia and other states have been complicit in this broad criminalization.

Advocates argue that prosecutors and judges in Virginia are basically setting deportation traps for undocumented immigrants, like Lopez, charged with minor crimes by offering plea deals after waiving jail time and declining to appoint defense counsel, the Post reported.

Victor M. Glasberg, an Alexandria civil rights attorney who criticized the way the Virginia Supreme Court has handled immigrants charged with minor offenses “It’s knowingly aimed at the Latino community,” Glasberg told the Post. “And it is part of Prince William’s ethnic cleansing program. [Judges] know the law.”

--Alissa Escarce