States Pass “364-Day” Misdemeanor Sentencing Laws to Protect Illegal Aliens from Deportation
By Colton R. Overcash | May 2, 2019
Courthouses are becoming a new battleground—thanks to states like Colorado, Utah, and New York—who have adopted criminal justice reforms that undermine federal immigration law. One of these changes will impair the federal government’s ability to deport dangerous criminal aliens.
On March 28, Utah Governor Gary Herbert (R) signed House Bill (HB) 244, a “364-day” measure, into law. It was sponsored by State Representative Eric Hutchings (R-Kearns) and State Senator Daniel Thatcher (R-Salt Lake). It passed both chambers unanimously.
HB 244 reduces the maximum possible sentence for misdemeanors under state law by a single day—from 365 to 364 days. Under federal law, any alien convicted of a crime punishable by a sentence of one year or more must be deported, is ineligible for most forms of adjustment of their status, and is required to be detained while their immigration proceedings are pending.
This one-day reduction all but guarantees that criminal aliens convicted of misdemeanors will avoid deportation, even if they commit a crime like identity theft, fraud, drug possession, child abuse, domestic violence, stalking, or driving under the influence.
Despite the unanimous vote, some Utah prosecutors are concerned about this legislation. Ryan Robinson, president-elect of the Statewide Association of Prosecutors, said his organization worries the proposal downplays the seriousness of many misdemeanors. “Some of our most alarming offenses are in that Class A category,” he said. “I don’t see that there’s a problem that really needs fixing.”
Utah wasn’t the only state to change its misdemeanor sentencing laws this year. Colorado Governor Jared Polis (D) signed HB 1148 into law, which included language almost identical to the Utah bill.
Previous measures to reduce sentencing were rejected by the legislature in 2017 and 2018. This year, however, HB 1148 passed the House along party lines 41-21 and passed the Senate 24-11, with five Republicans voting with all the Democrats. The legislative breakthrough was hailed as a “success” by the Colorado Organization for Latina Opportunity and Reproductive Rights, who helped push for the bill’s passage. “We have heard increased anti-immigrant rhetoric and families torn apart. This is meant to make people afraid and it is working. We will resist. We are here to stay,” the group said in a Facebook post. “This is a success for all immigrant families,” the group added.
In addition, the American Civil Liberties Union (ACLU) also praised the legislature for passing the bill, claiming the measure will increase “transparency and fairness” during the trial and plea process. “As more states approve laws like Utah’s to protect noncitizens from these catastrophic immigration penalties, it tells the federal government that we value efficiency, fairness, and common sense in our criminal and immigration systems. It also tells noncitizen members of our community that the bedrock of our justice system—equal justice under the law—applies to them as well,” the group said.
On April 12, Governor Andrew Cuomo (D) signed New York’s “364-day” measure into law when he signed the state budget. Tucked inside the budget was a provision that reduced misdemeanor sentences.
New York’s “364-day” provision goes even further than the ones in Colorado and Utah. It contains a retroactivity clause, meaning that anyone ever previously sentenced to one year in jail on a Class A misdemeanor charge will have their sentence automatically reduced to 364 days.
State Senator Jessica Ramos (D-Bronx), who co-sponsored the budget bill, actually boasted that the “364-day” measure should help keep 9,000 criminal aliens in the Empire State each year. “Immigrants are our neighbors and our family, and they make up the vibrant fabric of our communities,” she said. “[This] will ensure our undocumented population is able to stay.”
Several prominent Republicans have voiced their opposition to the provision, including Senate Minority Leader John Flanagan (R-East Northport), who called the criminal protection a “monstrosity.” “Not only have Senate Democrats betrayed the hardworking taxpayers they are supposed to represent — they have focused virtually all of their energy on delivering for criminals and illegal immigrants, and appeasing the radical, socialist fringe that now controls their party,” Flanagan said.
Four other states have adopted “364-day” laws in the recent past, including Washington (2011), Nevada (2013), California (2014), and Oregon (2017). They follow eleven other states whose misdemeanor charges already carried a maximum sentence of less than one year.