Brooklyn District Attorney Eric Gonzalez, Joined by Over 40 Elected Prosecutors, Calls Upon Department of Justice to Respect Prosecutorial Discretion

Friday, August 2, 2019


Brooklyn District Attorney Eric Gonzalez, Joined by Over 40 Elected Prosecutors,
Calls Upon Department of Justice to Respect Prosecutorial Discretion

Amicus Curiae Brief Urges Department of Justice to Continue to Defer to State and
Local Decisions Impacting Immigration Determinations

Brooklyn District Attorney Eric Gonzalez, along with 42 other local elected prosecutors and state Attorneys General from across the country, today filed an amicus curiae brief urging the Department of Justice to maintain well-established immigration court authority that gives deference to state and local decisions that affect immigration determinations. The brief is in response to Attorney General Barr’s call for feedback on a potential rule change that would give federal authorities unlimited ability to consider past convictions and sentences as grounds for deportation from the United States, even when those convictions are minor or deemed unjust and have been vacated or modified by local prosecutors or judges. Amici argue that the proposed rule change would break with decades of precedent thereby infringing on state sovereignty and impairing the ability of elected prosecutors to enforce their own criminal laws and exercise prosecutorial discretion in the interest of their own community’s safety. It would also put countless immigrants at new risk of deportation, including in cases where past convictions and sentences were revisited based on defects in the underlying cases.

“Prosecutors are ministers of justice charged with protecting their community and the integrity of the justice system by pursuing a fair result that promotes trust in the system,” said Miriam Krinsky, Executive Director of Fair and Just Prosecution. “Sometimes that duty includes revisiting old cases where incorrect, unjust or excessive sentences were imposed, and for immigrants, sometimes that means assessing whether penalties would inflict disproportionate harm on that individual, their family, and the community simply because of their immigration status. Any change to decades of immigration procedures and precedent would unduly limit the discretion of elected prosecutors and infringe on state and local rights.”

The brief brings together the voices of 43 elected prosecutors from around the nation – including Attorneys General from 7 states and 36 elected local prosecutors in urban and rural jurisdictions. It was authored by Matthew Biben, David Sarratt, Gabriel Panek, and H. Jacqueline Brehmer of the law firm Debevoise & Plimpton LLP, and Tali Farhadian Weinstein, General Counsel to the Brooklyn District Attorney, with the assistance and coordination of Fair and Just Prosecution, a non-profit organization dedicated to promoting a justice system grounded in fairness, equity, compassion, and fiscal responsibility.

“Justice requires a careful consideration of the facts of each case,” said DA Gonzalez. “This type of evaluation is best done at the local level with a consideration of community needs, which is why Congress and the Board of Immigration Appeals has long deferred to the state’s discretion to make criminal justice decisions regarding criminal convictions and sentences—including decisions to modify those convictions and sentences. This discretion is critical, and if ignored would create countless injustices that would erode public trust that the justice system is fair, and ultimately harm the ability of law enforcement to keep communities safe.”

To explain the importance of the current scheme, Gonzalez offered the example of a burglary conviction vacated following an investigation by his Conviction Review Unit, in which they found that the defendant, a green card holder who would have faced deportation for the offense, was falsely accused of a crime which never occurred. Underscoring the importance of recognizing these decisions, DA Gonzalez said, “It would have been absurd for the federal government to ignore this post-conviction finding and deport the man anyway and would be equally unjust to ignore countless other discretionary decisions regarding old convictions and sentences made in state courts.”

Amici also emphasized the potential public safety ramifications of changing settled immigration rules.

“If immigrants face deportation for convictions which have been vacated because they were innocent or because of violations of due process, that throws into question the legitimacy of the entire justice system,” said John Chisholm, District Attorney for Milwaukee County (Wisconsin). “When people don’t trust the justice system, witnesses are less likely to cooperate with the police and victims of crimes are less likely to come forward. An adverse ruling in this matter necessarily has the potential to harm the safety of our communities.”

Amici represent a diverse set of elected leaders from across the country, including Attorneys General TJ Donovan (Vermont), Keith Ellison (Minnesota), Robert Ferguson (Washington), Aaron Ford (Nevada), Kathy Jennings (Delaware), Karl Racine (District of Columbia), and Kwame Raoul (Illinois); District Attorneys Sherry Boston (Decatur, GA), John Chisholm (Milwaukee, WI), Satana Deberry (Durham, NC), Michael Dougherty (Boulder, CO), George Gascón (San Francisco, CA), Sim Gill (Salt Lake City, UT), Eric Gonzalez (Brooklyn, NY), Lawrence Krasner (Philadelphia, PA), Beth McCann (Denver, CO), Spencer Merriweather (Charlotte, NC), David Soares (Albany, NY) Raúl Torrez (Albuquerque, NM), and Cyrus Vance (New York, NY); Prosecuting Attorneys Dan Satterberg (Seattle, WA) and Carol Siemon (Lansing, MI); and State Attorney Andrew Warren (Tampa, FL).

List of Signatories

Aramis Ayala
State Attorney, Ninth Judicial Circuit, Florida

Diana Becton
District Attorney, Contra Costa County, California

Sherry Boston
District Attorney, DeKalb County, Georgia

Aisha Braveboy
State’s Attorney, Prince George’s County, Maryland

John T. Chisholm
District Attorney, Milwaukee County, Wisconsin

John Choi
County Attorney, Ramsey County, Minnesota

Darcel Clark
District Attorney, Bronx County, New York

John Creuzot
District Attorney, Dallas County, Texas

Satana Deberry
District Attorney, Durham County, North Carolina

Thomas J. Donovan, Jr.
Attorney General, Vermont

Michael Dougherty
District Attorney, Twentieth Judicial District, Colorado

Mark Dupree
District Attorney, Wyandotte County, Kansas

Keith Ellison
Attorney General, Minnesota

Robert W. Ferguson
Attorney General, Washington

Aaron Ford
Attorney General, Nevada

Kimberly Gardner
Circuit Attorney, City of St. Louis, Missouri

George Gascón
District Attorney, City and County of San Francisco, California

Sarah F. George
State’s Attorney, Chittenden County, Vermont

Sim Gill
District Attorney, Salt Lake County, Utah

Eric Gonzalez
District Attorney, Kings County, New York

Mark Gonzalez
District Attorney, Nueces County, Texas

Andrea Harrington
District Attorney, Berkshire County, Massachusetts

Peter S. Holmes
City Attorney, Seattle, Washington

John Hummel
District Attorney, Deschutes County, Oregon

Kathleen Jennings
Attorney General, Delaware

Lawrence S. Krasner
District Attorney, Philadelphia, Pennsylvania

Beth McCann
District Attorney, Second Judicial District, Colorado

Spencer Merriweather
District Attorney, Mecklenburg County, North Carolina

Margaret Moore
District Attorney, Travis County, Texas

Marilyn J. Mosby
State’s Attorney, Baltimore City, Maryland

Joseph Platania
Commonwealth’s Attorney, City of Charlottesville, Virginia

Karl A. Racine
Attorney General, District of Columbia

Kwame Raoul
Attorney General, Illinois

Jeff Reisig
District Attorney, Yolo County, California

Rachael Rollins
District Attorney, Suffolk County, Massachusetts

Jeff Rosen
District Attorney, Santa Clara County, California

Dan Satterberg
Prosecuting Attorney, King County, Washington

Carol A. Siemon
Prosecuting Attorney, Ingham County, Michigan

David Soares
District Attorney, Albany County, New York

David Sullivan
District Attorney, Northwestern District, Massachusetts

Raúl Torrez
District Attorney, Bernalillo County, New Mexico

Cyrus R. Vance, Jr.
District Attorney, New York County, New York

Andrew H. Warren
State Attorney, Thirteenth Judicial Circuit, Florida