Public defenders and immigrant advocates warn that Proposition 36 could lead to more people convicted of crimes being deported if voters approve the proposal on Tuesday.

The initiative could also allow district attorneys to decide who can and cannot stay in the country by giving them discretion to file more serious charges.

“It puts a tremendous amount of power in the hands of prosecutors, especially because it takes power away from immigration judges,” said Raha Jorjani, senior immigration defense attorney at the Alameda County Public Defender’s Office. “The problem with Prop. 36 is that once a crime falls into a certain category, it strips an immigration judge of the authority to even hear a case.”

“This argument is a red herring because prosecutors have a proven history of working to mitigate undue immigration consequences,” Greg Totten, co-chair of Yes on Prop 36 and CEO of the California District Attorneys Association, said in an email. “Specifically, that is The goal of the new treatment-requiring crime is to reduce drug crimes and create a strong incentive for individuals to seek treatment. After treatment, the defendants’ charges can then be dismissed. This poses no risk of immigration consequences for those who complete treatment.”

“Greg Totten can’t have it both ways,” Jorjani said. “If he supports this proposal, then he believes that non-violent crimes such as shoplifting and drug possession should be classified as felonies.”

Proposition 36 would repeal portions of Proposition 47. This is an initiative that voters approved a decade ago because of concerns about the state's high incarceration rates. The new initiative would make it easier to charge defendants with crimes by allowing prosecutors to consolidate some thefts to meet the state's $950 threshold. It also includes provisions allowing more serious charges against some repeat offenders.

A poll released Friday by the Berkeley Institute of Governmental Studies found Proposition 36 leading among likely California voters 60% to 25%. This was the latest of several polls in recent weeks showing the country with an overwhelming lead, reflecting renewed concerns among voters about rising crime.

So far, the issue of immigration has hardly played a role in the debate about Proposition 36. But it could increase the likelihood of deportation for immigrants who commit crimes in two ways. Firstly, this would result in more people being classified as criminals and therefore subject to priority deportation by immigration authorities. Second, it could lead to more people being put in prison. This could make it easier for Immigration and Customs Enforcement to track them down.

These factors could become even more important if Donald Trump wins the presidency again in Tuesday's general election. Then-California Chief Justice Tani G. Cantil-Sakauye repeatedly criticized the Trump administration in 2017 for sending immigration agents to detain immigrants in California courthouses, sometimes when they appeared on misdemeanor or civil cases.

“Prop. 36 is an attempt to dismantle 20 years of criminal justice reform by criminalizing vulnerable communities, including those who are not U.S. citizens,” said Bernice Espinoza, deportation defense attorney at Sonoma Immigration Services, in an email. “Members of the immigrant community will be at risk of mandatory deportation regardless of how long they have been in the U.S. or what ties they have to U.S. citizens or LPR family members. With more arrests, there will also be more ICE detentions. There is none.” There is a nationwide system that allows these people to receive free legal representation, even if they have a valid defense in deportation proceedings. Furthermore, this will place a greater burden on existing limited free services.

Jorjani said Proposition 36 would make it more difficult for people to apply for protections under SB 54. The California legislature passed this law in 2017, which prohibits law enforcement in the state from assisting in immigration enforcement unless a criminal meets certain conditions. A federal judge upheld that law over a challenge by the Trump administration.

She added that the initiative would result in more people being convicted of serious crimes that could be deported. First, it could lead to people being sentenced to a year or more in prison for shoplifting, putting them at risk of deportation even if they don't end up having to serve that time. It could also mean more people can be deported for drug possession if they have certain criminal records.

Jorjani said this would mean that an immigrant convicted of a serious crime in the United States would have no opportunity to argue that he would face persecution or death if he returned to his country of origin.

“If you only have one serious crime on your record, you have no opportunity to apply for asylum,” she said. “You can’t even apply.”