The MCAO Follows ICE's Blueprint for Separating Immigrant Families
This is what stands for progress in Arizona: The mere fact that Maricopa County Attorney Bill Montgomery feels the need to rationalize the way his office prosecutes undocumented workers, hitting them with multiple forgery counts, thus ensuring that they will be denied bond and eventually deported.
Disgraced, disbarred ex-County Attorney Andrew Thomas, Monty's old boss, would not have bothered with excuses. Thomas was proud of the ruthlessness with which his prosecutors persecuted an entire class of people.
On more than one occasion, Thomas stated under oath and to the media that the system he devised to charge undocumented workers in such a fashion — so as to make them non-bondable, coerce guilty pleas from them, and ensure their removals — was all part of his "no amnesty" policy.
Montgomery is a different kind of Republican, more subtle and cunning than Thomas, who was so good at playing the shameless, hysterical ideologue.
By contrast, Monty's made sure to court Latinos and progressives in his own way, signing on to the so-called SANE immigration plan, a lukewarm local version of comprehensive immigration reform.
This courtship continues, despite Thomas' campaigning in 2010 as a hard-right nativist, which I pointed out when the SANE plan first was announced.
So when a group of valiant immigration and criminal attorneys held a press conference in mid-February at the county courthouse to demand that Monty end this Thomas-era policy, he quickly called a press conference of his own to answer allegations of discriminatory practices and the over-charging of Latino defendants.
"I am enforcing the law as it is written," Monty said when confronted with Thomas' statements. "I'm not sure what someone else's justification might have been. [Andrew Thomas is] no longer the county attorney."
Ignoring recent history is convenient for Monty, but for those who have suffered under Thomas versus those who have suffered under Montgomery, the intellectual justification matters not.
But it matters to the supporters of SANE, an august list of progressive groups, Arizona businesses, and prominent individuals.
Montgomery has pitched himself to SANE as a sort of Nixon going to China, an arch-right-winger who can venture where other conservatives dare not tread.
Essentially, he has some of the SANE folks snowed into believing that his hands are tied when it comes to how, say, workers caught in Sheriff Joe Arpaio's migrant-hunting raids are prosecuted.
How do I know some of them are snowed? Because they've tried making these arguments to me, off the record, essentially defending Montgomery and buying into his baloney.
Almost all the attorneys I've spoken with about the subject disagree with Monty and his defenders, who contend he has no choice in the matter of charging the undocumented.
One of these critics is Michael Neufeld, a Phoenix attorney who practices both immigration and criminal law and handles several of these cases a year.
"[Montgomery] absolutely has the power, the decision on how to charge things, and on what plea offers to make to [defendants]," Neufeld told me.
See, Arizona has several laws under which the MCAO can prosecute someone who has been working under a false Social Security number or with a fake identity.
But from jump, Montgomery's prosecutors hit these undocumented moms and dads with multiple class-four felony charges — usually forgery or taking the identity of another — making them ineligible for bond, according to Proposition 100, which was approved by the state's voters in 2006.
To give you an idea of how nearly universal granting bond is, murder suspect Jodi Arias, who has admitted to the brutal slaying of her lover, Travis Alexander, is being held under $2 million bond.
Prohibitively high, sure. But under Prop 100, a worker alleged to have put a fake Social Security number on an employment file has zero opportunity for bail, and thereby is deemed worse than Arias under Arizona law.
The MCAO could charge undocumented workers with a misdemeanor or a class-six felony. If they're granted bond in state court but have holds placed on them by ICE, they would be turned over to ICE, which probably would bond them out as well.
However, the MCAO has a policy of going for class-four felonies.
In the past, according to Neufeld and other attorneys, Montgomery's office sometimes offered plea deals to felonies that do not have adverse immigration effects.
But Neufeld and others say Montgomery's office now want defendants to "plead to the lead," leaving them with a Hobson's choice: plead guilty and face deportation, or sit in Arpaio's gulags with thugs, thieves, and killers until trial, which could take six months, maybe more, to happen.
That's one reason these cases rarely go to trial, no matter how weak the case.
Monty swears up and down, despite Thomas' past statements to the contrary, that the MCAO does not charge defendants to affect their immigration cases once they are turned over to ICE.
"I'm not coordinating my efforts [with ICE] in that regard," Montgomery stated during his presser, adding, "I'm not going to chase after particular convictions or particular statutory charges to file . . . to guarantee or anticipate immigration consequences."
Yet that statement is directly contradicted by an ICE PowerPoint presented to MCAO attorneys in January 2012. I published the PowerPoint presentation recently after obtaining it through a public-records request to the MCAO.
The document spells out the "litigation challenge" faced by ICE attorneys when those convicted of certain statutes are turned over to ICE custody.
And it offers a solution, stating that there's "no problem if" certain subsections of the law are used to charge and convict the individual, thereby offering a blueprint for deportation.
The presentation took place on county property and was coordinated by Montgomery's office. His attorneys were given a "continuing legal education" credit for their attendance.
Several immigration attorneys have told me that one of the ICE presenters actually bragged to them about helping the MCAO ensure deportation.
And more than one defense lawyer has informed me that MCAO prosecutors have admitted that they must seek certain charges and are forbidden to offer certain plea deals — the idea being to mess up a defendant's chances of remaining in the country.
Interestingly, the U.S. Supreme Court in its 2010 decision Padilla v. Kentucky, noted that criminal convictions and the possibility of deportation are "enmeshed," stating that "informed consideration" of possible deportation could assist both prosecutors and defense counsel, helping them "craft a conviction and a sentence" that reduces the likelihood of deportation.
Monty is doing the exact opposite, which is why he's getting denounced by groups such as the League of United Latin American Citizens and the civil rights group Puente, which recently held a demonstration, led by 9-year-old Sara Blanco and her two older sisters, in front of Monty's downtown office.
The three girls wept as they described how their mother, grandmother, and grandfather were held non-bondable under several felony counts after they were picked up in a recent MCSO raid of a Tempe clothing company.
Montgomery, stung by the resulting bad press, has reached out to Latino groups, trying to convince them that he is a just man and has no choice but to make these little ones cry.
My advice to local Latinos: Whenever Monty tries to tell you that he has no choice, remember Sara's tears and challenge him to end this cruel charade.
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