Ramsey County Attorney John Choi is directing his staff to consider how plea deals and sentencings might affect a defendant’s immigration status, job or housing — and how, in some cases, prosecutors might make those consequences less severe.
Choi, who may be the first prosecutor in Minnesota to establish such a policy, has enlisted immigration lawyer Jorge Saavedra to help implement it since many such outcomes include deportation.
“It’s a new way to think about justice and recognize equity has a place in the conversation,” said Choi, who added that he’s already been working on lessening the penalties in some cases.
Choi in recent weeks distributed to his staff the new policy, in which he wrote that “considering the impact of collateral consequences is fully consistent with a prosecutor’s role as a minister of justice.”
The policy, which parallels that of cities such as Seattle and San Jose, Calif., acknowledges that people of color are disproportionately represented in the criminal justice system and bear a disproportionate share of the consequences.
“It’s about damn time,” said Ramsey County Chief Public Defender Jim Fleming. “It’s refreshing to see John has become open to these things. It’s my intention to hold his feet to the fire.”
Choi said changes to immigration enforcement under President Donald Trump, plus community values, moved him to act.
In a recent case, he said, two young men committed a grab-and-go theft at the mall. One ran out of the store with the goods and the other drove the getaway vehicle, and both were charged with felony theft. Yet one received probation and community service, while the other — a permanent legal resident — spent months in jail awaiting deportation back to the country he had fled with his parents.
Those dramatically different outcomes for the same crime didn’t seem like justice to Choi.
“Before, you didn’t ever hear about someone with a fifth-degree drug possession case being deported. It just wasn’t happening. Now it’s pretty standard,” he said. “We started to get requests from attorneys to consider these things, whether it’s post-conviction or while the case is pending in criminal court.”
Ramsey County Commissioner Toni Carter, who represents the western quarter of St. Paul on the County Board, called Choi’s policy “a positive step forward … hopefully ensuring positive re-entry of these citizens into the community.”
Not everyone is on board. Kim Crockett, senior policy fellow with the Twin Cities-based conservative think tank Center of the American Experiment, said in an e-mail Tuesday that she was disturbed by Choi’s description of prosecutors as “ministers of justice.”
“Choi’s memo goes well beyond normal prosecutorial discretion,” Crockett said. “He is directing his staff to rewrite the law, particularly as it applies to legal and illegal immigrants, who could face deportation if convicted of a crime. … In other words, cut a deal that avoids the possibility of deportation. What about justice for the victim? And what about enforcing the rights of the public under the law?”
Bigger than the crime itself
U.S. Immigration and Customs Enforcement (ICE) agents deported 256,000 people in the year ending last October, about a 13 percent jump over the year before. Nearly 170,000 of them were either convicted criminals or had criminal charges pending against them. Those numbers were still lower than the 400,000-plus deported under the Obama administration in 2012, according to the Washington Post.
Minnesota and four surrounding states have seen ICE removals nearly double in two years’ time, to 3,423 in 2018.
Fleming estimates that nearly 10 percent of his public defender clients have some kind of immigration issue. He said that more and more Americans are finding that even one minor conviction can have “drastic life-changing consequences” that make it difficult to rent an apartment, get a job or federal student loans, or qualify for professional licensure in some jobs.
“We are now creating a second class of citizens who cannot participate,” Fleming said. “Ultimately, that hurts all of us. These are people who are not able to pay taxes, buy homes and participate economically.”
Choi himself is a naturalized citizen whose family emigrated from Korea when he was 3. “I understand I am very lucky by virtue of the fact my parents decided to become United States citizens,” he said.
Many immigrant families, including Somali and Hmong refugees, settle in the country legally but don’t become full-fledged citizens because of the cost or because they hope the country they fled will one day become stable, Choi said. They don’t understand their children may be at risk of deportation if they’re later convicted of a crime of moral turpitude, which can range from murder to misdemeanor theft.
Choi said that he maintains full discretion and that cases involving violence won’t get the same consideration.
“There is no one-size-fits-all approach ... Our policy simply requires that we consider collateral consequences when they arise and seek to mitigate them in appropriate situations,” he writes in the new policy.
Other Twin Cities prosecutors said that they see the same issues with deportations and have been reconsidering collateral consequences in some nonviolent cases.
“I think John has done a nice job. We’ve had a similar policy, but it’s not written as extensively as his,” said Hennepin County Attorney Mike Freeman. “There are exceptions in this business. We need to make sure the exceptions are for supportable reasons.”
Washington County Attorney Pete Orput agreed. Choi has the right idea, he said, but intervention should be reserved for special cases. “That’s where I struggle with codifying it,” he said. “These are exceptions, and they should be exceptions.”
Orput said he recently had a case where a man got arrested in a prostitution sting. The married man and father, an Asian immigrant, believed he was meeting a juvenile for sex. Conviction could have meant the deportation of his wife and children. The case was handled in such a way, he said, so that “the guy got punished but the family didn’t.”
“We’ve had a number of meetings in my office to make sure the penalty fits the crime,” Orput said. “In some cases, the collateral consequence is so much bigger than the crime itself.”