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96 Denver L. Rev. F. 1 (2018)

handle is hein.journals/dnvrlwfv96 and id is 1 raw text is: A SMALL BUT SIGNIFICANT REFORM THAT COULD HAVE PUT THE CAP BACK ON MISDEMEANOR SENTENCING FOR COLORADO'S NONCITIZENS A power struggle between the states and the federal government has reached a heightened tension in the past year with the United States even filing a lawsuit against the State of California.' This heightened tension has been brought on by the conflict between the current administration's intensified efforts at deporting removable noncitizens and local law en- forcement agencies that have instituted various policies to limit their cooperation with federal immigration enforcement agents, more com- monly known as sanctuary cities or sanctuary states.2 The debate over the permissibility of these policies has largely focused on the inter- section between the supremacy of federal immigration law to preempt state laws that create an obstacle to the full purposes and objectives of Congress3 and the federal government's inability to commandeer state officers to carry out federal commands.4 Importantly, the states maintain a key power free from potential federal interference, which comes in the form of the power to establish state criminal laws and appropriate sen- tencing outside of the immigration context.5 Federal immigration authori- ties frequently depend on the elements of these state criminal laws and their sentences to determine whether a specific conviction qualifies as a deportable offense.6 Recently, the Colorado legislature debated a small reform that sought to utilize this key state power, in order to help Colorado's author- ized noncitizens' avoid removal proceedings and potential deportation for certain first-time, low-level criminal convictions.8 That small but 1. Adam Liptak, Sessions Targets California Immigrants Using a Ruling That Protected Them, N.Y. TIMES (March 7, 2018), https://www.nytimes.com/2018/03/07/us/politics/jeff-sessions- california-lawsuit.html. 2. See Exec. Order No. 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017). 3. Arizona v. United States, 567 U.S. 387, 406 (2012) (citing Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). 4. Printz v. Unites States, 521 U.S. 898, 935 (1997). 5. See Jennifer Lee Koh, The Whole Better than the Sum: A Case for the Categorical Ap- proach to Determining the Immigration Consequences of Crime, 26 GBO. IMMIGR. L.J. 257, 266-68 (2012). 6. Id. 7. For purposes of this brief article, the term authorized noncitizen refers to those nonciti- zens who have obtained a form of authorization to remain in the country from the United States government. While the precise consequences of criminal convictions can vary depending on the type of authorization, this broad term suffices for the general scope of this article because under the Immigration and Nationality Act any noncitizen remains subject to potential deportation. See 8 U.S.C. §§ 1227(a), 1101(a)(3) (2012). 8. Jesse Paul, Effort to Help Immigrants in Colorado Avoid Deportation Gets Some GOP Support, but is Set Aside in Legislature for Summer Work, DENV. POST (April 10, 2018), https://www.denverpost.com/2018/04/10/364-days-in-jail-bill-colorado-immigrants/. 1

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