An unjust double standard for immigrants in the ‘War on Drugs’

Angie Junck
Angie Junck

America was built on a foundation of second chances. For centuries, immigrants from all parts of the world have come to the United States for an opportunity to build a better life in a country where redemption is reality and where people thrive.

But for communities of color – especially immigrants – that land doesn’t really exist. Instead, many work for their second chance only to have it taken away from them. Our justice and immigration systems have evolved in such piecemeal, haphazard ways that enforcement of the law is uneven and the protections of the law are unequally applied, especially pertaining to drugs and deportations. This is a particular problem in California, where half of all children live in a household led by at least one foreign-born parent.

According to a new report from Human Rights Watch, deportations of non-citizens whose most serious conviction was for a drug offense rose 22 percent from 2004 to 2012. That number spiked by 43 percent for non-citizens with convictions for simple drug possession in particular, regardless of plea deals or successful completion of rehabilitation programs. Some were thrown into deportation proceedings decades after their initial arrests, forcing them to give up the lives, families and careers they’d built because of an infraction that would result in a slap on the wrist under most circumstances.

While several states, including California, have started to wake up to the full extent of the failure of the War on Drugs – with its disproportionate and discriminatory impact on communities of color – the federal government has been slow to catch up.

In California, a process called “Deferred Entry of Judgment” allows residents charged with a simple drug possession offense to avoid jail time following a guilty plea. As long as the person successfully completes a drug treatment program, the charges are dismissed and, in accordance with California law, the conviction is erased.

But such programs can have unintended federal consequences, especially for immigrants. With a plea of guilty, a person could lose federal housing and educational benefits – and an immigrant could automatically face deportation proceedings, whether or not that person successfully completes a drug treatment program. We’re effectively making promises to people with our fingers crossed behind our backs and ruining lives in the process.

Two bills authored by Assemblywoman Susan Talamantes Eggman, D-Stockton, and currently pending in the state Senate would prevent that. Both bills would level the playing field with a simple technical fix – Assembly Bill 1351 would allow immigrants and others to avoid an initial guilty plea before starting a drug rehabilitation program, and Assembly Bill 1352 would allow individuals who have already completed rehabilitation programs to withdraw previous guilty pleas. Both of these would help keep immigrants from getting swept up in the deportation dragnet and end this incidence of second-class treatment of immigrants by our justice system.

At this moment, the rate of incarceration in America is the highest in our history – and the highest in the world. Of the more than 200,000 people currently in prison, half found themselves there after a drug charge. Pretrial diversion recognizes that rehabilitation – not harsh and unrelenting punitive measures – saves lives, saves money and strengthens our communities. Immigrants should not be excluded from these programs, recriminalized and put in harm’s way even after they serve their time and successfully complete rehabilitation programs.

Our justice system shouldn’t perpetuate bias or create obstacles that punish immigrants because they live in America by choice, not by coincidence or an accident of birth. No matter when our families came here – whether it was for economic opportunity or to escape political repression, to give our kids access to a quality education or to embark on a new adventure – we all deserve equality before the law.

Angie Junck is a supervising attorney for the Immigrant Legal Resource Center. Armando Gudino is a policy manager for the Drug Policy Alliance.