California voters who head to the polls on November 4 stand to make significant changes to the adverse impact that immigration law has on migrants if they support Proposition 47. Titled the “Safe Neighborhoods and Schools Act,” Proposition 47 will reduce the penalties associated with a host of common offenses in such a way that migrants will continue to be punished through criminal law but will be more likely to avoid a second round of punishment under immigration law. If passed, it would also eliminate a significant recidivist offender statute that bumps many misdemeanors into the realm of an immigration law aggravated felony.
Much of Proposition 47’s impact is tied to immigration law’s requirement that some crimes be punishable by a minimum of one year to result in removal. The INA’s definition of a theft type of aggravated felony, for example, requires a term of imprisonment of at least one year. INA § 101(a)(43)(G). Similarly, the crime involving moral turpitude basis of deportation, INA 237(a)(2)(A)(i), requires conviction “of a crime for which a sentence of one year or longer may be imposed.”
Proposition 47 would redefine a number of offenses that are currently classified as felonies under state law to misdemeanors punishable by up to one year: forgery, fraud, receipt of stolen property, and, perhaps most importantly, simple possession of marijuana. Proposition 47 §§ 6, 7, 9, 12. Currently a maximum penalty of one year imprisonment would subject migrants to a second round of consequences under immigration law.
Two other crimes, shoplifting and petty theft, would be classified as misdemeanors. Proposition 47 §§ 5, 8. Though Proposition 47 does not specify a maximum jail term for these two offenses, California Penal Code § 19 states that the maximum jail term available is six months for misdemeanors that don’t specify a larger allowable sentence.
Proposition 47 cannot be read in a vacuum. California’s Governor Jerry Brown recently signed a bill, S.B. 1310, that defines a “one year” sentence as no more than 364 days, one day less than used for immigration law purposes. Specifically, S.B. 1310 adds a new section to the California Penal Code, section 18.5, effective January 1, 2015, that provides: “Every offense which is prescribed by any law of the state to be punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not to exceed 364 days.”
Together, Proposition 47 and the new California Penal Code § 18.5 mean that a conviction for shoplifting, forgery, fraud, petty theft, receipt of stolen property, and, simple possession of marijuana will be treated as a misdemeanor under state law and, without more, will not subject a person who is otherwise authorized to be in the United States to removal under any provision that requires a sentence of at least one year.
Relatedly, § 666(a) of the current version of the California Penal Code has the effect of converting some crimes that, alone, are not punishable by at least a year to crimes that are punishable by at least one year by subjecting people convicted of certain multiple offenses—including petty theft—to more than a year imprisonment. This sometimes has the effect of converting petty theft offenses into theft type aggravated felonies under INA § 101(a)(43)(G). Proposition 47 would also eliminate this recidivist enhancement statute, Cal. Penal Code § 666(a).
I’ll be keeping an eye out on what California voters decide.
Many thanks to Patricia Corrales of the Law Office of Patricia M. Corrales for bringing Proposition 47 to my attention.
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