It took nine months of incarceration in Sheriff Joe Arpaio's notorious Estrella Jail, but what should have happened in August of last year, happened just recently in the case of Luz Ruiz Rascon, mother of two U.S.-citizen children, one of whom suffers from leukemia.
You may recall from my February 7 cover story, "Bill Montgomery Is No Immigration Moderate," that Rascon, 38, was arrested in an Arpaio raid on a GNC warehouse in Phoenix and charged with six class-four felonies involving identity theft and forgery.
Rascon had used a non-existent Social Security number to score work at GNC, though she didn't adopt a false identity. Moreover, for all 11 years that she'd worked at GNC, she filed tax returns using a taxpayer-identification number.
She has no prior criminal history and never had been in jail before.
But because she is undocumented and because the Maricopa County Attorney's Office intentionally overcharged her, she was held non-bondable under the dictates of Proposition 100, an amendment to the Arizona Constitution passed by voters in 2006.
On Monday May 20, after 284 days in custody, Rascon pleaded guilty to one misdemeanor count of possession of a forgery device in a deal with the MCAO.
The felony counts against her were dropped.
The "forgery device" in question? A pen. You know, the one she used to write the made-up Social Security number.
Before sentencing, Judge Peter Reinstein asked Rascon if she wished to address the court. She said yes, and spoke briefly.
"I would like to apologize for the harm I could have caused," Rascon explained in Spanish, via a court interpreter. "It was never my intent to hurt anybody by working."
She went on to thank the judge and the MCAO for offering the plea deal.
Judge Reinstein gave her a suspended sentence and six months unsupervised probation. She had served more than three times the usual 90 days someone with a class-four felony conviction receives in such cases.
"I don't think you hurt anyone by your actions," Reinstein told Rascon. "I'm glad the state saw fit to offer you this plea agreement. I think it's appropriate."
Afterward, a pink-handcuffed Rascon hugged Delia Salvatierra, one of the three attorneys involved with the case. (Salvatierra's co-counsel is Johnny Sinodis, and their partner in defending the undocumented is Dori Zavala.)
By the time this column went to press, Rascon had yet to be transferred to the custody of U.S. Immigration and Customs Enforcement. Once that happens, it's anticipated that ICE will release her.
Outside court, Salvatierra was pleased that her client soon would be free, but she lamented the obvious.
"I can't even say justice prevailed today," Salvatierra said. "Because she's been detained for nine months. That's a hard sentence for a woman for pre-conviction incarceration, when she didn't harm anybody."
Salvatierra praised her client's heroism in not surrendering. Initially, prosecutors wanted Rascon to plead to the lead. She refused.
If she'd copped to a felony, she would've gotten out of county sooner, but she would have faced deportation, a 10-year bar to legal re-entry and indefinite separation from her kids.
And under the current language of the Gang of Eight's immigration-reform bill, she wouldn't have been eligible for a probationary legal status, like the 11 million or 12 million other mothers, fathers, grandparents, and children who stand to benefit.
County Attorney Bill Montgomery is, in word if not in deed, an advocate of comprehensive immigration reform. He even backs a proposal that would carve out an exception in any immigration overhaul for undocumented people convicted of felonies related to identity theft and forgery.
Nevertheless, his office pursues a hard-line policy toward the undocumented, overcharging them, so as to hold them non-bondable in Arpaio's inhumane gulags, thereby coercing them into pleading to a felony that ultimately will cause their removal from the country.
Montgomery denies this, of course. But an ICE PowerPoint I got hold of earlier this year gives the lie to that denial. In it, ICE shows how to charge the undocumented to make certain their deportation. It was part of an ICE seminar for Montgomery's prosecutors at the beginning of 2012.
When I interviewed Montgomery for the cover story, he defended his prosecution of Rascon, claiming he had no choice but to charge the undocumented in the manner he does.
The fact that there was no victim in the Rascon case? Didn't matter, according to Monty.
He claimed the fake Social Security number Rascon used to work at GNC possibly could be assigned down the road to someone, and that person would be Rascon's victim.
Which is ridiculous, but the question remains, what has happened since that January interview to cause this minor dent in Montgomery's inflexible charging policy?
Sure, Salvatierra submitted what's called a deviation request in Rascon's case recently, and the plea deal was a consequence of that letter asking the prosecutor to deviate from the initial charges.
But Salvatierra had submitted a similar deviation request in February, so what gives?
A couple of things. First, since lawyers such as Salvatierra now are taking on these cases, Montgomery's prosecutors have had to start going to trial, rather than counting on the defendant to cave. This means Monty's office has begun to lose.
I've written about some of these cases. One of Rascon's fellow workers at GNC, Rafael Lavallade Gonzalez, a 70-year-old diabetic was found not guilty after a seven-day trial on felony forgery and identity-theft charges. He had spent six months in jail.
In April, Miguel Angel Morales, a worker caught up in Arpaio's raid on United Construction in Glendale, was found not guilty of similar allegations in a five-day trial. He, too, had done six months on charges that usually pull a 90-day sentence.
Also in April, Sol Zenil, received the same deal as Rascon following six months in jail, after arrest by the Arizona Department of Public Safety for working illegally at a retail store.
Zenil, 23, pleaded guilty to the misdemeanor, but that was just to gain her freedom. The offer was made after the prosecutor admitted to Zenil's attorney that the Social Security number in question was legit, obtained when Zenil was much younger, and when the rules involved were much looser.
But most of the people charged with a class-four simply plead out to a felony to escape lockup in Arpaio's hoosegow.
Recently, 14 of the 23 individuals rounded up in the February raid on Sportex Apparel pleaded guilty to class-six felonies, though they weren't the sort of class-six charges that give an immigration attorney a solid chance at blocking deportation.
My colleagues in the press have been scrutinizing Monty on this issue. And some of the Hispanic organizations that Montgomery had been flirting with now want nothing to do with him.
He was denounced by the Hispanic Bar Association Los Abogados, and the civil rights group Puente demonstrated on the doorsteps of the county building where the MCAO has its offices. Children crying for their jailed mothers and grandmothers often participate.
Until Montgomery changes his policy across the board and deals with each of these cases according to its merits — handing out misdemeanors more often than not — then this issue will remain a problem for him.
I think Montgomery wants it to end. In some ways, he's a prisoner of his own right-wing rhetoric.
But if he takes out his telescope and gives the horizon a look-see, he'll glimpse a future without Arpaio, with immigration reform, and with Hispanics on the rise. That's where Monty wants to go, as long as the weight of his own actions doesn't keep him mired in the recent past.
