When is a conviction not a conviction?
That’s one of the questions raised by California Gov. Jerry Brown as he vetoed a bill Thursday that would have protected immigrants—legal or not—with low level drug offenses from deportation.
In California, anyone who gets popped for a minor drug offense, like smoking a joint, can plead guilty and volunteer for drug treatment—usually about a year. Upon successful completion of drug counseling, that charge and conviction is wiped off one’s record like it never happened.
But if you’re an immigrant in California, it gets more complicated. Under federal law, that guilty plea is still considered a conviction and convictions can lead to mandatory detention and deportation, again, even if you’re a legal permanent resident holding a “green card.”
California lawmakers, with the support of the drug law reform lobby and human rights activists, passed Assembly Bill (AB) 1351, a proposal that would have eliminated the requirement to file a guilty plea before entering drug treatment, so that there would never be a conviction that would alert the feds.
But Gov. Brown vetoed the bill, saying “it goes too far.” He added “that the bill eliminates the most powerful incentive to stay in treatment—the knowledge that judgment will be entered for failure to do so.”
Supporters of the bill are scratching their heads at the governor’s logic. After all, they say if an immigrant is in drug treatment and leaving the program could mean deportation, then that’s a strong incentive to stay in order to avoid a conviction.
Brown did sign a companion measure, AB 1352, which allows people who already successfully completed drug treatment to withdraw their guilty pleas, if they face the loss of a job or another benefit such as being able to remain in the United States. Clearing their record could take over a year after their guilty plea. This law is written to meet federal requirements for expunging a conviction, says Grace Meng, senior U.S. researcher at Human Rights Watch.
“You’ll end up with a clean record and you can honestly say that you’ve never been arrested,” said Meng. “So they can say there never was a conviction.”
But given the lag time between when an immigrant completes a drug program and when a court officially dismisses their case, an immigrant could a face a time period of maybe a year when they are still vulnerable to being picked up by Immigration and Customs Enforcement (ICE).
“That’s why both bills were needed, so that there’s no conviction for smoking a joint in the first place,” said Meng.