The Sanctuary of Prosecutorial Nullification

In the aftermath of the 2016 election, the shortcomings of existing sanctuary protections came sharply into focus.1 Historically, cities enacted sanctuary protections to extricate their law enforcement agencies from activities related to federal immigration enforcement. In sanctuary cities, local government agencies are typically restricted from sharing information with federal immigration authorities or from cooperating in apprehending individuals targeted for removal.2 After the White House issued an Executive Order (EO) in late January 2017, many immigrant rights advocates recognized that external facing policies that proscribed direct cooperation would not suffice.3 The EO announced that Immigration and Customs Enforcement (ICE) would prioritize removing any undocumented person charged or convicted of a crime, no matter how serious. 4 Recognizing the vital role state criminal courts play and would continue to play in fueling deportations, public defenders in New York City ( City ) identified a new actor with the power to enact stronger protections: the prosecutor.