State Rep. Josh Williams, R-Sylvania. Courtesy photo.
An Ohio lawmaker wants judges to consider a defendant’s immigration status when they set conditions for bail or hand down criminal sentences.
The bill’s sponsor, Rep. Josh Williams, R-Sylvania Township, characterized the changes as a way to give judges “a full picture” of the defendant before them.
But critics argue the proposal might violate the 14th Amendment’s equal protection clause or encroach on the federal authority over immigration enforcement.
More generally, they worry the measure targets immigrants — whether here legally or not — at a moment of rising fear and distrust of justice system. People with a target on their back, they argue, aren’t likely to report crimes or testify in court.
What the bill does
When it comes to setting bail, the central question a judge must consider is whether the defendant show up for their court date.
But state law carries a laundry list of other considerations judges should weigh when determining bail, parole or sentences. Did the defendant serve in the military? Did they exhibit remorse? Do they have ties to the community? In 2022, state lawmakers even went to the ballot to explicitly direct judges to weigh whether a defendant is a threat to public safety when setting the amount of cash bail.
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House Bill 282 would add the defendant’s immigration status to that list. Williams thinks judges should be considering whether a defendant is in the country illegally or subject to a federal detainer when they’re setting conditions.
“It’s always a factor, one, in bail, whether or not an individual is going to return to court,” Williams said. “I think immigration status has a direct effect on that, whether or not an individual is going to be here to answer to justice or not at the conclusion of the case.”
When it comes to criminal sentences and parole, Williams contends, a defendant’s immigration status should be given the same weight as their criminal history.
“Just like probation and parole, if you are actively on those at the time that you commit an offense, and you are an American citizen, that goes against the idea of you being able to be rehabilitated, absent incarceration,” Williams said. “I think it also should be a factor that an individual is here unlawfully, already breaking the law in the state of Ohio and they commit another criminal offense.”
Committee questions
Williams’ proposal got pushback from Democratic committee members, including state Rep. Ismail Mohamed, D-Columbus. He pressed Williams on the Supremacy Clause, which gives the federal government exclusive authority to enforce federal laws. Mohamed noted several states have passed laws wading into immigration enforcement and it hasn’t gone well.
“There’s about five to seven different bills that were passed in other states that were all struck down,” Mohamed said.
Williams insisted those other measures gave local authorities policing powers or made federal violations state crimes as well.
“There’s no federal statute, there’s no constitutional revision that prevents an individual from, especially a judge from considering immigration status as it comes to bond conditions or sentencing,” Williams said.
Mohamed asked about the 14th Amendment’s equal protection clause, which applies to “any person” within a state’s jurisdiction.
“It doesn’t make any distinction with U.S. citizens, green card holders, noncitizens,” he said. “So essentially, if this will directly lead to judges that are imposing harsher sentences, how do you reconcile that with the 14th Amendment.”
Williams didn’t deny the provision would subject immigrants to greater scrutiny.
“I think it’s reasonable that individuals that are here, legally or illegally, are held to a high standard, just like individuals that are facing parole, probation or bond conditions in another case,” he said.
Instead, Williams contends treating immigrants differently isn’t an issue because immigration status is not a suspect category under the 14th Amendment. He pointed to analysis by state legislative researchers which draws a distinction between immigration status and the race, ethnic background, gender or religion protections found in state law.
Researchers point to an Ohio case where the appeals court upheld a lower court considering a defendant’s immigration status when imposing a felony sentence.
“Courts have done it before. It’s been upheld before,” he said. “I think it’s reasonable to use that classification, because it’s not a suspect classification that gets protection under the equal protections clause.”
But notably — and Williams acknowledged as much — judges already have the discretion to consider a defendant’s immigration status. State law includes a catch all “any other factors that are relevant” in its instructions to the bench.
To Williams, though, that flexibility is treacherous.
“I think it can lead to sentencing disparities where in one jurisdiction, an immigrant would have been seen — viewed more harshly, (and) in another jurisdiction, they will be seen, more lenient,” he said. “I think we need to have consistency across the state of Ohio.”
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