I have not written about the allegations of domestic violence against San Francisco Sheriff Ross Mirkarimi. For one thing Ross is a friend of mine and I don’t want to risk the impartiality that I attempt to obtain in this blog. ¹ Mirkarimi was charged with domestic violence based upon a New Years Eve incident involving his wife, eight days before he was sworn in as the city’s new sheriff. ²

Last week, during jury selection, Mirkarimi entered into a plea bargain with the district attorney. He plead to a misdemeanor charge of false imprisonment and the other charges were dismissed. After entering the plea, Mirkarimi, in a discussion with the press, said that his legal bills were $125,000 and rising. ³ He said that the bills were a factor in entering the plea. This angered District Attorney George Gascon who said that if Mirarini was innocest his plea should be withdrawn and he should go to trial.

The problem with Gascon’s statement is that a lot of innocent people plead guilty. It is often called an Alford Plea. ⁴ Under an Alford Plea a defendant pleads guilty, even though he/she does not admit to being guilty and the court makes a finding that there is sufficient evidence to convict the defendant.

It is not particularly unusual in my caseload that a client who I know to be innocent pleads guilty. It is not something I like and I tell the client so. But I recognize that clients must make there own decision. The reasons for such guilty pleas vary considerably. One client had a sick father he had to take care of. He had been offered a plea bargain that would allow him to get out of custody if he plead guilty and he did not have money for bail. In several cases I represented indigent clients who were receiving government benefits. When offered a plea that would allow them to get out of custody they grabbed it. If they had not gotten out of custody they would have lost their government benefits and would have been unable to pay the rent. With the threat of being homeless they entered into pleas and got out of custody.

The ironic part of Gascon’s claim that he does not accept guilty pleas from innocent people is that the above clients could get out of custody, in light of the district attorney’s admission that the client did not deserve further time in custody and prove their innocence at trial if the district attorney would agree to releasing the client on their own recognizance but as a rule the district attorney will not do that.

When innocent clients enter a guilty plea I tell the judge that the plea is against my advice. Then the judge either asks me if there are facts in the police report under which a jury could find the client guilty or the judge ask for a copy of the police report and reads it before taking the plea.

Certainly there are many reasons that pleas are entered. I take Mirkarini’s attorney’s word that he takes responsibility for the crime and that the plea was not an Alford Plea. But one problem he will have if it is an Alford Plea, that is unique to domestic violence cases, is that it is contemplated that as part of his sentence ⁵ he will be sentenced to complete a 52 week domestic violence program. As a general rule the domestic violence programs won’t accept a defendant unless the defendant admits to having committed a violent act.

A convicted sex offender in New Mexico has been arrested and is facing three years in prison for moving out of a dumpster and into an abandoned apartment. The law in New Mexico requires sex offenders to have a physical address and to notify the authorities within ten days of moving. That means it is illegal to be homeless and be a sex offender in New Mexico. ¹ In California where the laws forbid sex offenders from living within 2000 feet of any school or park it is very difficult to find any place that sex offenders can live, forcing them to be homeless. In San Francisco 80 per cent of sex offenders are homeless. Thus we force sex offenders to be homeless and then we punish them for being homeless. Great laws we have!

San Francisco County Sheriff Michael Hennessey is refusing to turn over those charged with minor misdemeanors to Homeland Security’s Immigration and Customs Enforcement (ICE) unit.

ICE through its Secure Communities Program obtains the fingerprints of everyone who is arrested and places a detainer on undocumented immigrants.

After former California Attorney General Jerry Brown agreed to join the Secure Communities Program, Sheriff Hennessey and the city of San Francisco attempted to opt out of the program but ICE refused to recognize local attempts to opt out.

While Secure Communities is supposed to provide a method to deport those charged with serious felonies many immigrants charged with misdemeanors and infraction have been deported under the program.

According to Sheriff Hennessey ICE detainers are not mandatory and he is free to ignore them. San Francisco is a Sanctuary City. As part of the Sanctuary City policy city officials are not supposed to cooperate with ICE in the deportation of those charged with misdemeanors. Sheriff Hennessey has developed a compromise between the Sanctuary City policy and ICE’s Secure Communities. He will not comply with the voluntary detainers in so far as they request those charged with minor misdemeanor such as petty theft, jay walking, or driving without a license, but he will comply with detainers when they are for those charged with major misdemeanors such as those dealing with violence, guns, or sex offenses.

It seems to me, that while Sheriff Hennessey is taking a step in the right direction, if the detainers are not mandatory, he has a duty to fully comply with the Sanctuary City policy and not turn over anyone charged with a misdemeanor to ICE.id

ICE claims to have definitively decided not to allow individual counties to opt out of its Secure Communities Program. A number of counties including California’s San Francisco and Santa Clara counties as well as Virginia’s Arlington County and Washington D. C. have requested to opt out of the program following the decision of the state Attorneys General to enroll the state in the program.

A community that signs up for Secure Communities electronically provides all fingerprints of those arrested and booked to Homeland Security’s Immigration and Customs Enforcement unit (ICE).

Theoretically, according to ICE, it only uses the information to deport the most serious violators of our laws. But, the truth of the matter is that the program has been used to deport numerous individuals who have no record or who have only infraction or misdemeanor records.

Furthermore, according to San Francisco Sheriff Michael Hennessy the program scares people into not reporting crimes. For example a mother may not report her husband for domestic violence if she is afraid that the father of her children and her only means of support will be deported. The same reasoning may prevent an elder person from reporting a child who is abusing her or a neighborhood kid who is writing graffiti on the walls.

San Francisco Sheriff Michael Hennessy requested that San Francisco opt out of U.S. Immigration and Customs Enforcement’s (ICE) Secure Communities Program.

Secure Communities is a program under which the fingerprints of everyone arrested in a community are provided to ICE. However under San Francisco’s Sanctuary City ordinance only those immigrants who are charged with felonies, found to have a previous felony or ICE contact in their criminal history are reported. Initially ICE promised that only those charged with felonies would be subject to deportation.

As a study quoted in the New York Times shows nationwide twenty-six per cent of those deported under the program do not have criminal records. In some places the percentage is higher. In Maricopa County, Arizona the percentage is fifty-four per cent and in Travis County Texas it is eighty-two percent. By ICE’s own records seventy-nine percent of those deported either had no criminal record or convictions for minor offenses.

Prior to the June 8th implementation of Secure Communities in San Francisco, ICE and California Attorney General Jerry Brown told Hennessy that there was no way to opt out of the program. But in response to statistics showing that many of the people deported are innocent or are guilty of only minor offenses and ICE has agreed to make the plan voluntary. They have agreed to meet with Hennessy to discuss the city’s objections to the program. As Hennessy has pointed out in the past many immigrants are intimidated by the program and refuse to report criminal activity due to fear of deportation. A wife may not report domestic violence, for example if she knows that her husband may be deported. She want medical help for herself and treatment for her husband but she does not want him to be deported where he will not be able to support her and have contact with their children.

The statistics are shocking. Human Rights Watch reported in 2000 that in seven states 80 to 90 percent of those sent to prison for drug offenses were African American. ¹ In at least fifteen states African Americans were sent to prison from twenty to fifty-seven times as often as white men. In 2000 twenty-six times as many African Americans were sent to prison for drug offenses as in 1983. Likewise the number of Latinos sent to prison increased by 22 times between 1983 and 2000. While the majority of drug users and drug dealers in this country are white over three quarters of those sent to prison are African American and Latino.

In another study published in 2000 white students used cocaine seven times as often as African American students, used crack eight times as often, and used heroin seven times as often. White youth between 12 and 17 are a third more likely to have sold illegal drugs than African American youth. Yet African American Americans are more likely to be prosecuted, convicted and imprisoned.

Among youth who have never been sent to prison, African American are more than six times as likely to be sent to prison for identical crimes. African Americans account for 16 per cent of all youth, 28 per cent of juvenile arrests, 35 per cent of juveniles tried in adult court and 58 per cent of juveniles sent to adult prisons.

Approximately 90 per cent of those sent to prison for drug crimes in Illinois are African American and 55 per cent of the African American men in Chicago have felony records. Nationwide one in three young African American men are either in prison or jail or on parole or probation.

Alexander says that the mass incarceration of the last thirty years serves the same function of racial control that slavery and Jim Crow held for prior generations. While it is no longer acceptable to openly express racist ideas, But the vast difference in drug arrests, prosecutions, and convictions between Whites and minority, despite evidence that Whites violate the law at least as often as African Americans and Latinos can leave no doubt that racism plays an important role in our criminal justice system.

While the laws appear to be colorblind, Alexander points out the tremendous degree of discretion granted to police and district attorneys in deciding which cases to arrest and prosecute. Recently there have been articles in press regarding the large database of citizens in New York City who have been stopped and who have either been frisked or consented to searches, some leading to arrest. The vast majority are African American or Latino. Consent searches or incidents where officers “stop and frisk” citizens happen nationwide. Despite the tremendous invasion of privacy that occurs when officers stop an individual without probable cause and often even without a reasonable suspicion, “consent” searches occur regularly and the police have the discretion to decide who to stop, search and frisk. The vast majority of times it is a young African American male who is stopped and searched. It is this discretion on who to stop and who to search that leads to the extraordinary increase in the number of African Americans who are incarcerated as part of the War on Drugs.

The lifelong effect of these convictions, as pointed out by Alexander is overwhelming. Once convicted of a felony the person can not get public housing or governmental benefits. They are unlikely to be able to get a job or schooling. Furthermore while incarcerated they learn skills to use in future crimes. The inability to get jobs affects their families and future generations.

An El Salvadorean citizen residing in San Francisco was seized by Immigration and Customs Enforcement (ICE) as an illegal alien after he was stopped for making an inadequate stop at a stop sign. When he was stopped the officer asked him for his driver’s license. He did not have one. (Of course it is hard if not impossible for an illegal alien to obtain a driver’s license.) He was then arrested for driving without a license. When his name was placed in the computer it was discovered that while he had no criminal record he had an immigration warrant and he was seized by ICE.

San Francisco is a sanctuary city. Under the Sanctuary Ordinance no city funds can be used to assist in the deportation of a non-citizen. Originally there was an exception for those convicted of a felony. Recently, after the Federal government threatened to arrest juvenile probation officers who were shielding juveniles from deportation the rule was amended to allow the deportation of anyone charged with a felony even if the charges were eventually dismissed or reduced to a misdemeanor. But in any case making an improper stop is only a traffic infraction and driving without a license is at most a misdemeanor. Neither should result in a report to ICE or deportation. But someone, probably the police officer apparently violated the Sanctuary Ordinance and reported the poor man who had lived in the city for five years to ICE and he is now facing deportation.

Perhaps the ironic part of the incident is that it occurred on June 2nd. On the eighth ICE’s Secure Communities Program took effect in San Francisco giving it access to all fingerprints taken at the jail allowing for the deportation of any illegal alien even if the person is never charged with a crime or is only charged with an infraction or a misdemeanor.

Secure Communities is a Department of Homeland Security (DHS) program to deport felons who have either been convicted of serious felonies in the past or are currently accused of committing such. It operates through the use of biometric evidence, primarily booking fingerprints, which are immediately transmitted to the Integrated Automatic Fingerprint Identification System (IAFIS) of the FBI’s Criminal Justice Information Services (CJIS) Division and the Automated Biometric Identification System (IDENT) of the Department of Homeland Security’s US-VISIT Program.

Within hours of booking DHS can order the local sheriff’s to put a hold on the person for transfer to an immigration facility. Thus even if the District Attorney decides not to charge the individual or if the only charges pressed are misdemeanors or infractions the individual could be deported. DHS says that only felons will be targeted but the hold may be placed before the person is charged.

San Francisco Sheriff Michael Hennessey last week asked California Attorney General Jerry Brown to exclude San Francisco from Secure Communities even though that will mean a loss of Federal Funds. He pointed out that the programs is in direct conflict with San Francisco’s Sanctuary City policy under which only those accused of felonies are reported to Federal Authorities. Under Secure Communities all people who are booked will be automatically reported.

Last year the San Francisco Sheriff’s Department reported 2000 aliens to DHS and DHS picked up 1,162 of them. Hennessey says the number will dramatically increase under Secure Communities. Although DHS claims that they will target felons, Hennessey claims that among those that will be reported are those charged with such petty crimes as selling from an ice cream cart without a permit. DHS says they do not have the budget to go after those accused of petty crimes but Congress seems willing to increase DHS’s budget in light of Arizona’s move to criminalize illegal aliens.

One problem with Secure Communities is that it inhibits immigrants from calling the police for help. An immigrant is less likely, for example to report domestic violence, if he/she is afraid that their spouse or significant other will be finger printed and deported shortly after being arrested. Immigrants are less likely to report the gang activities of their neighbor’s children if they are afraid the child will be deported. In the end it may make us less secure and crime less likely to be reported.

A thirteen year old boy punched a schoolmate and stole forty-six cents from him. Proper punishment–some time in youth hall maybe. Counseling–perhaps. But in this case the fourteen year old, his mother and his brother, but not his stepfather who is a US citizen were almost deported when it was discovered that their visa had expired.

San Francisco Mayor Gavin Newsom instituted a new policy under which every juvenile alleged to have committed felonious conduct and who was in the country illegally is reported to Homeland Security for deportation. No conviction is necessary. So when the boy was arrested and charged with robbing forty-six cents the Juvenile Probation Department reported it to Homeland Security and the kid, his mother and his five year old brother were ordered to leave the country by March 5. Luckily some strings were pulled in Washington and the deportation order was delayed. Yesterday it was announced that the family had been given green cards and would not be deported.

The ironic part of this is that the boy’s mother, Tracey Washington is married to Charles Washington, a Municipal Bus driver and a United States citizen. Therefore she and her children are eligible for citizenship.

As Charles Washington pointed out after it was announced that his family would be allowed to remain in the country, in a letter to Newsom

“Your policy hurts families and tears children away from their parents for minor, first-time offenses,” Charles Washington, a Muni bus driver, said in a letter to the mayor.

“Our family’s luck in this case was unique, but Mr. Newsom, the pain we felt when our family was facing deportation as a result of your policy is not unique.”

Other consequences are that children who have spent most of their life in this country are deported to countries where they cannot speak the language. Children may be deported, without their parents to countries where they do not have family or know anyone. The Board of Supervisors pass legislation rejecting the mayor”s policy. But Newsom vetoed it. The Board overrode the veto but Newsom has refused to enforce the legislation.

San Francisco (along with a number of other cities including Austin, Baltimore, and New York) is a sanctuary city. A sanctuary city is one that is friendly to immigrants. It does not cooperate with the Federal government when the government wants to deport illegal aliens.

There are exceptions to the sanctuary policy. For example city employees will report suspected felons to ICE for deportation. Until July this exception did not apply to juveniles in San Francisco. The San Francisco Chronicle ran a series of articles about a group of Honduran juveniles. They were placed in a group home in Southern California after being detained on drug charges in order to avoid deportation. They walked away from the home without supervision. At approximately the same time Edwin Ramos was arrested and charged with the murder of a father and two sons in a road rage incident. Ramos was in this country illegally. He was arrested twice as a juvenile on crimes of violence but he had not been deported.

The US Attorney is investigating whether San Francisco officials violated Federal law. At that point San Francisco Mayor Gavin Newsom, who is running for governor ordered city officials to report juveniles arrested on felony charges to ICE if they are suspected of being in this country illegally.

Tuesday the San Francisco Board of Supervisors by a veto proof margin of 8-2 voted to amend the policy to only deport those found to have committed a felony. The legislation was sponsored by by David Campos who originally came to this country as an illegal immigrant from Guatemala. Many juveniles are charged with felonies but due to plea bargaining or judicial orders the charges are either reduced to misdemeanors or dismissed. Newsom stated that he will not only veto the legislation but he will ignore it.

Newsom is supported by the City Attorney’s office which wrote a memo claiming that the Board of Supervisor amendment to the Sanctuary Policy is illegal and will adversely affect the city’s position in several current law suits including a wrongful death suit by the family of the alleged victims of Edwin Ramos. Newsom claims that if the amendment is enforced local authorities will be subject to Federal litigation for violating Federal law. But the City Attorney’s memo only says that the law is unsettled and that they do not know the results of any litigation resulting from the Supervisor’s amendment.