Prosecutorial Prioritization

Sometimes the most meaningful reforms are the ones in which a longstanding, fundamental principle or practice is not altered, but instead preserved. In terms of criminal justice reform, prosecutorial discretion certainly fits into this category.

It comes into play at every level of our legal system — from the cop on the beat deciding whether to write a parking ticket, or give chase to the bank robber sprinting down the block, to the establishment of enforcement priorities by state and federal regulators charged with policing factory pollution, workforce safety rules, and the like.

What follows is the story about the exercise of prosecutorial discretion on the largest of scales, an immigration-related initiative developed on my watch as Secretary of the Department of Homeland Security (DHS).

I am referring to the Deferred Action for Childhood Arrivals, or DACA, which ultimately affected the lives of hundreds of thousands of young immigrants collectively known as the “Dreamers.” This was an exercise that required careful navigation between the potentially conflicting dictates of doing what is right, of doing what is lawful, and doing what is defensible, both in the court of law and, to a lesser degree, the court of public opinion.

By 2012, there were an estimated 1.4 million Dreamers living in the country. Named after the proposed “DREAM Act” legislation first introduced in 2001, which would have given them legal status and a path to citizenship, Dreamers were brought into the country as children. They were kids who in all but the letter of the law were Americans. All lived in fear of deportation, and all endured everyday difficulties unknown to their American-born contemporaries.

As a former U.S. Attorney, Attorney General, and Arizona Governor, I came to DHS fully aware that many of our immigration enforcement policies made little sense, and with a fundamental question on my mind: How do we prioritize and use immigration enforcement resources responsibly without abandoning our executive branch obligation to “take care that the laws be faithfully executed”?

The U.S. Congress appropriates resources specifically to DHS removal and detention operations to remove fewer than 2 percent out of the estimated 11 million undocumented individuals in the U.S. These numbers imply that, on an operational level in the field, choices were being made about who should be removed, thus raising a host of important questions about priorities and enforcement for DHS leadership.

We would never tell immigration enforcement agents that they should stop enforcing immigration laws. But we certainly could tell them how to prioritize enforcement efforts given the limited resources that Congress provided the Department.

And so early on at my time at DHS we issued a series of memos to Immigration and Customs (ICE) agents in the field instructing them to focus their efforts on the “bad actors” — individuals who presented risks to national security, or who had committed felonies, or who had joined gangs, and so on. As for military veterans; long-time, law-abiding residents; nursing mothers; people with certain family ties; the severely ill; and Dreamers — policy memos issued by the ICE director made clear that these no longer fit the priorities.

 Prosecutorial discretion has a long and distinguished history in immigration law, and so we were confident that we were on solid legal ground when it came to setting priorities for immigration enforcement efforts. Our attorneys had done a great job exploring the issue — sifting through the precedents; pursuing legal questions that ranged from Constitutional authority, to Congressional intent, to the legal definition of the word “shall” (which is not the same as “must always”).

A key element was Heckler v. Chaney, a seminal 1985 Supreme Court case involving the FDA’s authority to exclude or allow certain drugs to come to market. In that case, the Supreme Court had ruled, “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.”

Another important precedent was the Court’s 1999 decision in Reno v. American-Arab Anti-Discrimination Committee where it explicitly recognized the executive branch’s authority to exercise prosecutorial discretion in the immigration context.

With this legal footing in mind, and with progress toward any meaningful immigration reform clearly stalled in Congress, I assembled a small team of advisers in the spring of 2012 and asked them this: What through the exercise of prosecutorial discretion can we do about the Dreamers, short of a blanket amnesty and within the parameters of the law?

I wanted to create a potential pathway to deferred action for all Dreamers, not just the minority already caught up in the system and facing removal proceedings. In immigration-speak, the term “deferred action” generally means to suspend moving forward with certain cases for a fixed period of time. It does not mean granting amnesty or otherwise permanently resolving immigration status. But it does permit someone to live free from fear of deportation, and to obtain authorization to work.

To apply deferred action in the form of a categorical exercise of prosecutorial discretion to an entire group across the board raises serious questions. It runs the risk of appearing to make law, and usurping Congress. Thus, it would be crucial to underscore that each case would be assessed individually, on its own merits — similar, but not identical, to how a prosecutor decides to charge a case. The Dreamers would be required to step forward individually and apply for deferred status. All applicants would need to pass background checks. Those who qualified would be eligible for work authorization, pursuant to a longstanding regulation that granted such eligibility to those who received deferred action.

At this point, I could not say with certainty that we would be able to pull off this approach. Individualized review of potentially hundreds of thousands of cases would require building complex new systems and processes within the existing bureaucracy — a daunting challenge. What I did know was that this was the right thing to do, and that it was lawful — although this latter view, we knew, would almost certainly need to be defended, both in court and in the court of public opinion.

As DACA was intended to apply to young people who came to the United States as children, we required that an individual must have arrived in the United States before turning 16 and be under the age of 30 on the date DACA was publicly announced. To reflect that those who received deferred action should have strong roots in the United States, we required that individuals must have lived in the United States for five years prior to the implementation of DACA, and be present in the United States on the DACA announcement date. And to ensure that recipients of DACA were productive members of their communities, we required that individuals must be currently in school, have graduated from high school, have obtained a GED, or be a veteran and not have a serious criminal record or pose a threat to public safety.

The White House then asked us to walk them through the legal rationale and the implementation challenges. The scale of our proposal was significant, perhaps more so than any previous exercise of prosecutorial discretion in the immigration context. Our White House colleagues asked serious, tough questions. Eventually, they reached a comfort level with our legal position — DACA was well within the legal authority of DHS — and with our preparations for implementing DACA across the country.

On June 15, 2012, I issued a memorandum to the heads of the DHS agencies that enforce immigration laws, handle immigration benefits, and police the borders and ports.

 “By this memorandum,” it began, “I am setting forth how, in the exercise of our prosecutorial discretion, the Department of Homeland Security (DHS) should enforce the Nation’s immigration laws against certain young people who were brought to this country as children and know only this country as home. Additional measures are necessary to ensure that our enforcement resources are not expended on these low priority cases but are instead appropriately focused on people who meet our enforcement priorities.”

I closed with the following: “This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the exercise of discretion within the framework of the existing law. I have done so here.”

We received what appeared to be early support for our efforts in a decision by the U.S. Supreme Court that came less than two weeks after our announcement. Although the issue before the Court in Arizona v. United States was Arizona’s restrictive immigrant enforcement measures, Justice Kennedy wrote for the majority that “a principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.”

Nevertheless, we soon, as anticipated, faced a legal challenge. Though the vast majority of ICE agents dutifully executed on DACA, and conducted themselves professionally and responsibly, a handful of immigration agents brought a lawsuit that challenged our theories of prosecutorial discretion. They argued that DACA required them to break the law. A district court judge in Dallas surprised us, and most legal scholars, by ruling the case might have merit. He then dismissed it on the grounds that it belonged in an administrative setting, not in federal court. The decision has been appealed and is pending before the Fifth Circuit.

In the political arena, our Congressional critics attacked DACA as both an open invitation for young people to illegally cross our borders, and a Constitutional power grab in the form of an executive amnesty program. It is neither. DACA is no substitute for comprehensive immigration reform. But in the absence of reform action by the House of Representatives, something needed to be done to address the plight of the Dreamers. Our answer was to exercise prosecutorial discretion in the form of DACA. It was the right thing to do, and the lawful thing to do.

In closing, I would note that prosecutorial discretion is as fundamental a principle and practice to criminal justice, writ large, as it is to immigration enforcement. And as we contemplate reforms of our nation’s criminal justice system, we must remember to preserve those elements, like prosecutorial discretion, that are essential to our eternal quest for balance and fairness in the service of justice and freedom.

Click here to read the entire book, Solutions: American Leaders Speak Out On Criminal Justice.