Editorial:  Noncitizens and America’s drug laws

Under California law, first-time offenders caught by police with small amounts of illegal drugs can qualify for “deferred entry of judgment,” in which a judge accepts a guilty plea, then suspends criminal proceedings while the offender enters rehabilitation or another court-approved program targeting drug use and recidivism. If the offender successfully completes the program, the case is dismissed and the conviction erased.

That’s no small thing. Studies have found that even a misdemeanor conviction can make it difficult to get a job. It can affect access to certain professional licenses and eligibility for some social services. Diversion programs also reflect the growing recognition that drug abuse and addiction might be better viewed as a public health issue than as a criminal one.

But there’s a small wrinkle in the process for noncitizens, whether they are here legally, holding a green card and waiting in line for naturalization, or here without permission. Under federal immigration laws, any drug conviction other than for possession of less than 30 grams of marijuana is grounds for deportation. So if a noncitizen caught with a small amount of a controlled substance opts for deferred entry of judgment, he or she could be deported because the program is predicated on pleading guilty.

Assemblywoman Susan Talamantes Eggman (D-Stockton) has introduced AB 1351, which would tweak the deferred-entry program to remove the guilty plea requirement. But it’s not a free pass. If the defendant doesn’t satisfactorily complete the drug program, the legal process resumes, including entering a plea and going to trial, if necessary.

Theoretically, the federal government could still deport a noncitizen simply for the drug abuse, but experts say such deportations are rare.


This change is in league with a fix the Legislature made last year, shortening the sentence for a misdemeanor conviction from a maximum of 365 days in jail to 364 days. Crimes carrying a penalty of 365 days or more are treated as felonies by the federal government and can lead, in some cases, to summary deportation. By lopping a day from the maximum possible sentence, a conviction for most of those minor crimes no longer carries the risk of deportation.

Neither of these changes means California is weak on crime or soft on immigration. Defendants are eligible only once for the deferred entry of judgment program, and only if they have no prior drug convictions and the arrest was not connected with a violent crime, among other restrictions.

The new approach would treat potential citizens the same way full citizens are treated when it comes to minor drug infractions. And it rightly emphasizes recovery and rehabilitation over incarceration.

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