The Mesa County District Attorney's office recently announced a policy that sentences undocumented immigrants differently from documented immigrants or U.S. citizens.
It is a change that one local immigration attorney calls a violation of constitutional rights. But it isn’t as cut and dry as it may sound.
It's an extremely complex issue about what is essentially a legal limbo for people whose citizen status is undocumented at the time that they're and charged with a crime in Mesa County. And while the District Attorney's new policy attempts to make everything fair, some say it's not doing the trick.
Mesa County District Attorney Pete Hautzinger recently announced a new policy for sentencing criminals with an ICE hold.
That ICE hold means federal immigration authorities suspect they're here illegally.
Hautzinger is now using jail time as one form of sentencing for people in that situation, instead of the probation they would have received under the old rules.
For U.S. citizens or someone with a green card, charged with the same crime, the policy did not change – they are still offered probation.
Hautzinger says the change was necessary to keep things fair.
"Because illegal immigrants cannot successfully complete probation, because they can't legally hold a job, that's what triggered me to think more about it and decide that it's not really fair to the U.S. citizen who's getting a worse deal than an illegal alien," says Hautzinger.
But this new policy does not sit well with some immigration and defense attorneys.
"Problem is, if probation's not available, that leaves jail time, or some other form of incarceration," says deputy state public defender Steve Colvin.
And the attorneys say this means more taxpayer money spent on resources to keep someone in jail.
"I'm not entirely happy with that,” says Hautzinger, “Because I don't want to just be filling up our jail with persons who are serving sentences on convictions and they're in jail as opposed to being on probation if they're here legally. I'm not happy with that, but I don't have a better solution."
But public defender Steve Colvin says it's more than just taxpayer dollars.
"I think the problem is to arbitrarily decide this class of people that is undocumented are going to get incarceration types of offers and the rest of us are going to get probation offers,” says Colvin. “I think that's problematic."
Immigration attorney John Reardon agrees. "They are all big issues. I'm not trying to minimize the issues. But it's better for everyone to treat them with the same constitutional rights."
Hautzinger says he spent years considering how to handle the sentencing of those who can't complete probation, and consulted other D.A.’s before coming to a decision.
"On this particular issue, I've done the best I can to come up with a fair and just resolution,” says Hautzinger, “And I haven't heard any complaints from the citizenry about it."
An important point to note is that an ICE hold means that law enforcement has probable cause to believe a person might be here illegally.
It does not automatically mean that the person will get deported.
And people with an ICE hold have the right to fight the charge in immigration court.
Because of this distinction, Reardon, and other immigration attorneys from throughout the state say that people with an ICE hold should try to bond out of their criminal charge right away.
"For me, it is much better for them to see the immigration judge when the charges are pending, not with a conviction," says Reardon.
In addition, if people with an ICE hold are found to be in the country legally, then they will face their criminal charges as a documented immigrant, which would mean they would be eligible for probation.
Immigration attorneys all over the country say they would prefer working with defense attorneys early on in criminal cases that involve people with an ICE hold.