Despite Queens’ celebrated reputation as the country’s most diverse county, the borough’s criminal courthouse has become a risky place for immigrants.
According to an interactive map created by the Immigrant Defense Project, at least 39 Immigration and Customs Enforcement arrests were reported in and around the courthouse between 2015 and June 27, 2018. Some 34 of those occurred since president Donald Trump took office in January 2017. Another immigrant was reportedly arrested by ICE outside the courthouse in late September.
Immigrants make up about half of Queens 2.3 million residents, but unlike prosecutors in Manhattan, Brooklyn and the Bronx, Queens District Attorney Richard A. Brown has yet to publicly call on ICE to stop arresting witnesses, victims and defendants inside courthouses.
Brown’s failure is part of a larger problem, according to immigration advocates and criminal defense attorneys who represent immigrants in criminal court. “Broadly speaking, the Queens District Attorney’s office is not receptive to immigration consequences,” said Legal Aid staff attorney Casey Dalporto. “It is especially surprising because Queens is an exceptionally diverse borough.”
Brown’s seeming recalcitrance to call out ICE policies may become a factor in 2019 race for Queens District Attorney when Queens residents will likely choose the borough’s first new district attorney in almost 30 years. Brown, 85, has not ruled out running again in 2019, but if he does run he will face challengers for the first time since he was elected in 1991. Advocates are calling on prosecutors to consider how their policies and practices affect noncitizens who are at risk of detention and deportation.
A New Queens DA
Former Queens Supreme Court, Criminal Term Justice Gregory Lasak officially declared his candidacy Tuesday. Lasak, who resigned from the bench last month to launch his campaign, served as an assistant district attorney and head of the homicide bureau under Brown. He was elected a judge in 2003 and Queens Democratic Party insiders once considered him Brown’s likely successor.
Councilmember Rory Lancman, chair of the City Council’s Committee on the Justice System, announced his bid in September. Lancman is a criminal justice reformer who believes in ending the cash bail system, closing Rikers Island and introducing open discovery in criminal court.
He has told various outlets that he welcomes comparisons to Larry Krasner, the Philadelphia DA who stopped prosecuting several low level offenses, directed assistant district attorneys to start plea deals at the low end of sentencing guidelines and dismissed prosecutors who were not on board with his reform agenda. He has made discretion and nuance in cases involving noncitizens a specific focus of his campaign
In a statement announcing his candidacy, Lancman said that if elected, his office would “no longer refuse to consider the collateral immigration consequences for noncitizens when deciding how to charge an offense.” Brooklyn District Attorney Eric Gonzalez last year announced a similar “case-by-case” policy for charging noncitizens.
Lasak said he would consider individual immigration consequences, but he declined to commit to a sweeping pledge like that of Gonzalez. Instead, he said he would hire an experienced immigration attorney to advise him and the office on collateral consequences. He also told Documented he would consider a periodic review of open summons warrants, “every 18 months or so.”
Prosecutorial discretion is important amid the nationwide immigration crackdown because non-citizens typically suffer more severe consequences than citizens when charged in Queens with the same criminal offenses, Lancman said.
“Why, in a borough of immigrants, in the most diverse county in the country that we’re so proud of, would a district attorney’s office turn a blind eye to the individual circumstances that immigrants face in the era of Donald Trump?” Lancman told Documented. If he were elected, he said, “every person is going to stand before the court as the individual they are and with whatever circumstances they carry with them.”
Lancman said he would reform speedy trial practices to limit the number of times people have to appear in court and use prosecutorial discretion when considering what charges to bring against defendants.
“Where for all practical purposes, justice is able to be done equally through two different charging decisions, we’re not going to add the extra burden of getting a guy kicked out of country,” he said.
Flexibility in Charging
Lancman said, for instance, that the current Queens DA’s office does not seem to consider how vehicle and traffic law (VTL) offenses can complicate a defendant’s immigration status.
Queens prosecutors often offer defendants arrested for a first-time Driving While Intoxicated (DWI) offense to plead to the lesser offense of Driving While Ability Impaired (DWAI) — driving with a blood alcohol level between .05 percent and .07 percent. Most U.S. citizens would be happy with the lesser charge because unlike Driving While Intoxicated, DWAI is not a crime under New York State Law but a mere traffic infraction.
But for many immigrants, a DWAI can imperil their status under the Deferred Action for Childhood Arrivals program, said criminal defense attorney Ali Najmi, because under DACA, DWAI is considered a “significant misdemeanor.”
What Queens prosecutors should do, he said, is charge the DACA person with an alternate misdemeanor charge — like reckless driving — that would serve the same punishment but not imperil a defendant’s DACA renewal, Najmi said.
Earlier this year, Najmi represented a DACA recipient who was arrested for driving with a blood alcohol level over the legal limit of .08 in Queens. The DA’s office offered him a deal to plead to the lesser charge of DWAI, even though he blew a 0.14 on a breathalyzer test, because it was a first-time offense.
But Najmi said he rejected the plea because it would mean his client could not renew his DACA, which was pending the outcome of the case.
“Every assistant district attorney I spoke with in the courtroom, at the rail, the person assigned to the case says, ‘We don’t consider immigration consequences. We treat everyone the same,’” Najmi said. “But they’re not treating everyone the same because this kid is going to get deported.”
After several months of negotiation, Queens prosecutors agreed to charge the defendant with reckless driving, but only if he spent 20 days on Rikers Island and wore an alcohol detecting device post-release.
The sentence was more severe than the defendant would have received if he had agreed to the DWAI deal, but it was the only way he could preserve his DACA status. He took vacation time from his job and served out his sentence on Rikers.
“It’s so counterintuitive and crazy to agree to criminal pleas, but for immigrants they can work better,” Najmi said. “I find it despicable because Queens is the immigrant borough.”
ICE Lurks Outside the Court
Dalporto, the Legal Aid staff attorney, said the DA’s office refuses to consider immigration consequences even when a defendant faces immigration detention.
Earlier this spring, ICE agents waited outside a courtroom to arrest a Legal Aid client charged with misdemeanor assault if the judge released the person on his own recognizance, Dalporto said. Legal Aid asked the judge to set bail so that the person could go to Rikers and proceed with their case rather than go into federal custody. The assistant district attorney argued against setting bail, Dalporto said.
The judge declined to set bail, released the defendant and ICE arrested him once he left the courtroom.
Though bail reform is at the center of the criminal justice reform movement, setting bail can be the only way to prevent a noncitizen from being detained inside the courthouse. It’s a bizarre twist that Lancman said was the “perfect example of the absurdity of the system.”
Beyond pledging to approach each noncitizen’s case with an eye toward collateral consequences, Lancman has committed to stopping the prosecution of various low level offenses like marijuana possession and fare evasion that disproportionately affect people of color, including immigrants.
He also said he would clear open summons warrants that expose noncitizens to arrest, an important move to public defenders.
“Having an open warrant is walking around with consequences loaded and waiting to explode,” said Legal Aid attorney Anthony Posada.
People with open summons warrants can always address them at criminal court and the Queens DA’s office occasionally runs summons warrant clearing events, including one scheduled later this month at a church in Woodside where the office expects to attract about 200 people.
Many people, particularly non-English speakers, do not realize they have an open warrant until they are stopped by the police for some other offense and arrested after officers see the warrant, Posada said. Immigrants may be reluctant to attend an event or go to the courthouse to clean up their warrants because they fear contact with ICE, Posada said.
Lancman said he would sidestep such concerns by simply clearing open summons warrants related to cases his office would decline to prosecute.
“I’m grateful that some people are getting religion about clearing warrants and that’s a good thing but there should be a lot more clearing of old warrants without requiring people to show up and expose themselves to ICE,” Lancman said.
Lancman also said he would consider the impact of prosecutorial policies on industries that primarily employ immigrants, such as the for-hire vehicle industry. For example, he said his office would not prosecute people for driving on a suspended license if the suspension is based on the driver not paying some kind of fee or fine to the Department of Motor Vehicles.
He said the Limousine and Taxi Commission should handle such offenses administratively rather than take up time in criminal court.
are not unlimited,” Lancman said. “The district attorney is responsible for
delivering justice for the people of Queens and implicit in that is making
value judgements about what are the priorities of Queens residents, what is the
balance of the harm from [policy] versus the benefit and what choices are we
going to make to really keep the people of Queens safe.”