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Albany Law School




In the aftermath of the 2016 election, the shortcomings of existing sanctuary protections came sharply into focus.1 Historically, cities enacted sanctuary protections to extricate their law enforcement agencies from activities related to federal immigration enforcement. In sanctuary cities, local government agencies are typically restricted from sharing information with federal immigration authorities or from cooperating in apprehending individuals targeted for removal. 2 After the White House issued an Executive Order (EO) in late January 2017, many immigrant rights advocates recognized that external facing policies that proscribed direct cooperation would not suffice. 3 The EO announced that Immigration and Customs Enforcement (ICE) would prioritize removing any undocumented person charged or convicted of a crime, no matter how serious. 4 Recognizing the vital role state criminal courts play and would continue to play in fueling deportations, public defenders in New York City ("City") identified a new actor with the power to enact stronger protections: the prosecutor. 5

Prosecutors are the most powerful actors in the American criminal legal system. 6 Their imperial discretion shapes how the law gets applied, who gets punished, and who is forgiven.7 It has always been true that a prosecutor's charging, bail, and plea bargaining practices regularly expose noncitizens to the risk of removal. 8 Skillful defense negotiations can sometimes mitigate those consequences. 9 But, after January 25, 2017, the mere accusation of a crime, no matter how serious, created a heightened risk of removal for undocumented individuals. 10 Under this new enforcement regime, prosecutors became a more obvious focus for reform, as the actors responsible for leveling criminal charges." They remain an underappreciated source for sanctuary protections, however.12

This Article examines the role local prosecutors can play to isolate cities and states from the federal immigration enforcement regime, by describing a campaign launched days after the January 25, 2017 EO's promulgation. The #NYCdontprosecute campaign demanded that local district attorneys (DAs) suspend prosecutions for broken windows offenses because of the heightened risk of removal prompted by a criminal charge. 13 Public defenders, who recognized the inadequacy of their standard tactics to mitigate the collateral consequences of contacts between law enforcement and noncitizens launched the campaign. 14 They asked the public to exert pressure on their adversaries in order to win greater protections for their clients. 15

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