ANNAPOLIS – Under Maryland law, first-time, nonviolent offenders of relatively minor crimes can plead guilty and receive probation, and after successful completion, go on without the burden of a criminal conviction haunting the rest of their lives.
Not so for the immigrants in the state. In order to receive probation, they must plead guilty to a crime, which for them can lead to deportation or make them ineligible to receive a green card or to become a citizen.
State legislators, advocates and prosecutors, including the Maryland Attorney General, agree that the 47-year-old law, which has given thousands of Maryland residents a second chance, unfairly harms immigrants including those who are lawfully living and working in the state, immigrants brought to the country as children, so-called “Dreamers” protected under the federal Deferred Action for Childhood Arrivals policy, and undocumented residents.
Sen. Susan C. Lee, D-Montgomery, and Del. Wanika B. Fisher, D-Prince George’s, are sponsoring legislation titled Probation Not Deportation (SB0265/HB0559) that would amend the state statute, called Probation Before Judgment, so immigrants would not be vulnerable to further penalties.
The Senate took up the bill this week and the House of Delegates will hold a hearing in the upcoming weeks.
“The current PBJ law unintentionally created an unequal application for citizens and noncitizens, and this bill is largely a technical fix to achieve equal justice” Lee, the lead sponsor on the bill, said Wednesday during a hearing on the legislation before the Senate Judicial Proceedings Committee.
The provision adds a method for a judge to grant immigrants probation without having them plead guilty during the sentencing process. Advocates, including criminal justice officials, said it will not erode the original method of obtaining probation.
Federal immigration law interprets probation as a conviction,because the person pled guilty to a crime and that can lead to harsh consequences the bill is designed to eliminate.
During the hearing, witnesses said the federal immigration policy undermines the intent of PBJ but can be fixed at the state level by making probation not a conviction under state and federal laws.
They also said the law disproportionately impacts people of color. Attorney Emily Jones from Capital Area Immigrants’ Rights Coalition, an organization representing immigrants in detention, said that more than a half of her clients were detained by Immigration and Customs Enforcement after having contact with the criminal system and almost 99% of them are Black or brown.
Some senators are concerned, however, that the bill could constitute a violation of due process of the Maryland Constitution.
“You can’t put people on probation unless you have them plead guilty,” Sen. Michael Hough, R-Frederick and Carroll, said during the hearing.
Advocates and criminal law experts countered that the provision would only pause the finding of guilt, acknowledging that the facts of guilt exist.
The state’s attorneys for Caroline and Montgomery counties testified in favor of the bill during the hearing and the committee received a letter of support from the Attorney General’s office.
The letter said the bill “will help avoid devastating immigration consequences for people who commit minor crimes.”
In an interview with the Capital News Service, Gabriela Kahrl, a lawyer and associate director at the Chacon Center for Immigrant Law in the University of Maryland-Baltimore, said the change in the law would “create equal opportunity to probation for every Marylander, regardless of whether they are a U.S. citizen or not.”
“The person is not getting anything other than the failure to trigger the federal immigration statute that considers it a conviction,” Kahrl said.
Janice Alonzo, an academic advisor and adjunct faculty member at Community College of Baltimore County, told legislators Wednesday she worries that a family member under DACA protection could be deported after being placed on probation for driving under the influence of alcohol two years ago.
The man has completed alcohol counseling classes and is working to pay the court-ordered fine, Alonzo said. A deportation would tear her family apart, she told the committee.
“We’ve cried and are very worried about the fact that this family member could be sent back home because of his one night mistake,” she said.
The current law has devastating consequences for people who oftentimes are offenders of small crimes including theft, drug possession or a dispute, said John F. Gossart, a former U.S. immigration judge who also testified at the hearing.
“We’re talking about individuals who have made a mistake, recognize their mistakes, and are willing to rehabilitate themselves,” Gossart, a judge with the Baltimore Immigration Court for 31 years, told Capital News Service in an interview.
He is a member of the Board of Directors for the Immigration Law Section with the Federal Bar Association, a voluntary organization for private and government lawyers and judges practicing law in a federal court.
Gossart said over his career he had no choice but to issue deportation orders for more than a hundred immigrants who had received probation. The law did not permit him to give them a second chance even if he thought they deserved one, he said.
He recalled deporting a permanent resident on probation, a father of two U.S. citizens and a homeowner who Gossart described as a decent and good person.
“None of that counted,” he said. “I had no choice. I was correct under the law, but I did not do justice that day,” he said.