Julia Preston offers a meaty story on the Obama administration's initiative to use prosecutorial discretion to ease the severity of the nation's immigration law (read it here). At first blush, the story has little to suggest that this policy provides any help to those of use looking move the criminal justice system away from its rigid laws and policies channeling those arrested toward incarceration. After all, those who may receive a resolution of their deportation case will not be the ones with criminal convictions, who will be targeted as deportation priority cases. In some of the most sympathetic cases, profiled in the story, the detained aliens seeking release only became illegalized because of rigid state laws requiring notification of the Immigration Control and Enforcement agency and rigid federal laws preventing immigration judges from considering the individual circumstances of the person who is often in a family with citizens and contributing through legal work and good behavior to the community.
Still, this program is about moving people out of detention (albeit civil) through prosecutorial discretion legitimized by a reasoned effort to identify higher risks and to concentrate the government's coercive power on them while moving low risk individuals back into the community with as little harm to them and their families, and as little cost to the government as possible. The same reasoning applies to many of the two million Americans behind jail or prison bars as a result of rigid laws that in the name of public safety require incarceration with little consideration of the risk posed by the individual or the positive contributions they might be making to the community. California's "realigment" of correctional authority, which is moving thousands of felony convictions from state prison to county corrections and giving county decision makers more power to withhold incarceration for those posing low risk.
The move toward a more overtly risk based system brings serious human and civil rights concerns. How is risk assessed? Do dynamic factors get due weight or only static qualifications (like early arrest) that are partially determined by law enforcement? Still, our current approach in both immigration and criminal justice is worst, imposing higly alarmist risk perspective on entire categories of people.