Progressive DA Shares Perspective on Restorative Justice, Prosecuting Migrants, & Maine’s Flawed Criminal Justice System

Natasha Irving has been serving as District Attorney of Maine’s Sixth Prosecutorial District, which covers Sagadahoc, Knox, Lincoln and Waldo counties, since getting elected for the first time in 2018.

Irving, a Democrat and self-described progressive, ran on a platform focused on restorative justice policies, which include providing people convicted of crimes with alternatives to incarceration, such as treatment or rehabilitation programs, and to take into account the “collateral consequences” that may result from a criminal conviction.

The Maine Wire obtained several policy and procedure memos through public records requests from District Attorneys in other states across the country that include specific directives to avoid “immigration consequences” when prosecuting migrants who may be at risk of deportation if charged or convicted of a crime.

In one example, from a January 2022 staff memo entitled “Achieving Fairness and Safety” from Manhattan District Attorney Alvin Bragg (D) upon his taking office, a section of the memo is dedicated to “special procedures for cases involving noncitizens.”

In the memo, Bragg directs his prosecutorial team to “avoid immigration consequences” — such as removal from the U.S. — for noncitizens, in cases where the crime would typically not result in incarceration.

The Maine Wire sent Freedom of Access Act (FOAA) requests to Maine’s District Attorney offices requesting any memos or documents containing language regarding immigration consequences similar to that found in the policy directives from other out-of-state progressive District Attorneys.

District Attorney Irving, in response to the Maine Wire’s request, indicated that her office does not have any policy directives specifically referring to noncitizens or immigration consequences, but that her office does have a more general “collateral consequences” policy.

Collateral consequences may include factors like a defendant’s age, military enlistment, Second Amendment issues for firearm possession prohibitions, child custody or protective matters, and may depend on the specifics of the case, the seriousness of the potential charges and the defendant’s criminal history.

Irving agreed to a phone interview to discuss in detail how her office treats cases where collateral consequences are considered, including instances where noncitizens and asylum seekers are charged with crimes and may face deportation.

The progressive DA also went in depth into how her view on restorative justice practices has shifted over her career as a prosecutor in Maine, including some of her frustrations with the Democratic “party line” on immigration enforcement and criminal justice reform.

Irving differentiated herself from other District Attorneys in the state due to her district covering primarily rural areas, her background growing up in a hunting family, and her alignment with conservatives on some issues of criminal justice and public safety.

Below is a transcript of the Maine Wire’s interview with District Attorney Natasha Irving:

What is your office’s collateral consequences policy?

So I was looking through to see when I took office, I had a policy memo, and then an update, and then a lot of that has kind of been changed over the years, one way or another. But the policy regarding collateral consequences is to consider, you know, collateral consequences must be considered in charging decisions, and in dispositions of cases.

And that’s any collateral consequence from military, licensure — like professional licensure — child protective matters, Second Amendment issues, immigration consequences, housing consequences, education consequences, it’s supposed to just always be part of the consideration.

There’s no hard and fast rule, because it wouldn’t be appropriate. There’s no way to have a hard and fast rule about it.

So it’s on a case-by-case basis, where you decide what the collateral consequences would be?

Yeah, it has to be. I mean, it has to be. And I’ll tell you, there’s cases where somebody is here and they’re a noncitizen, often seeking a Green Card, or have a Green Card, or asylum seekers, or what have you.

So if a charge is operating without a license, for instance, oftentimes it turns out that somebody has a license from another country. Sometimes we’ve had issues where it’s people are living here, they’re married to somebody who lives here, they have a Green Card, and they have a charge that could potentially have an effect on whether they stay here.

And sometimes having the person leave is a good thing, right? So that is an issue, you know. For instance, we had a gentleman from France who was married, and he was stalking his wife — soon to be ex-wife. And the defense attorney was saying, collateral consequences, he won’t be able to come back for his daughter’s graduation, and this and that.

So we ended up, I believe, and I hadn’t really endorsed it, but I was also okay with it. It was done through a settlement with a judge, but the person gave up their Green Card and residency, but would have been able without a certain type of conviction — and I don’t remember exactly what it was off the top of my head — but with replacing charges, would have been able to reenter the country, for instance, to go to his children’s college graduation.

But we’ve also had instances, right, where somebody, we have instances all the time –right now I know that there’s at least one person that’s in custody, and there’s a federal detainer.

And so would that be referring to a [U.S. Immigrations and Customs Enforcement] detainer or immigration detainer?

Yeah, and we’ve had a really good working relationship with ICE.

So I mean, sometimes — I don’t want to ever say that, like we use [deportation] against somebody –but there’s times, where there’s a collateral consequence that the person you know would leave the country. And that’s a good thing.

Sometimes we, and one of the great things about having a good relationship with ICE is that we can also say, hey, we really want to have a conviction in this case, and have this person you know, hopefully, get through this so there’s justice for this victim, and serve their sentence and then be booted out — which is obviously not great for taxpayers to have to pay for all that. But sometimes justice you know kind of requires [it] — it’s always different.

So you’re what you’re describing is a resolution of the local charges prior to the removal proceedings?

Sometimes, yes. And again, every case is so case specific.

But for instance, also, like, we’ll have cases where a person is an asylum seeker, they’ve been, you know, upstanding citizen and upstanding resident in every way, and they, you know, commit crime that’s somewhat innocuous, and something that, if a similarly situated person committed, would maybe result in a fine or a drop down to a civil violation.

But for them, having any criminal conviction means they’re gone, and it’s not necessarily a just result. But we do the same thing when it comes to, you know, military service, child protective cases, Second Amendment cases, you know, not second amendment, but if somebody’s convicted of a — I mean, happens all the time, right? Somebody’s charged with a crime that could result in prohibition of possession of firearms.

And let’s say it’s a felony, that’s a completely nonviolent person with nonviolent history, and it’s a nonviolent felony, like an operating after revocation, because, you know, they owed fines and they kept driving or something like that. Now is it a just result? Or should somebody be able to get out from under a felony conviction? And that should be considered, so we do take those things into account.

Now I know another district attorney, and I will not name names, but I know another district attorney that has said that if they can get a felony conviction to to take someone’s guns away, they’ll do that every time — because guns are bad. But they don’t live in a rural district. They obviously don’t have the same background that I do.

So was the collateral consequences policy something you developed when you came into office, or was there a standing policy in place before?

So it was something I developed. It was one of my kind of key principles coming into this office, was that I had worked as defense, and that I didn’t believe that collateral consequences were taken into effect to the extent they should be.

What I had previously encountered is doing work in this district was that, oh, you have a child protective case, and if you have a misdemeanor conviction, it’s going to be an aggravating factor that could result in termination of your parental rights, and your children will go to foster care — too bad, so sad. And I thought that that was, and I still do, think that that is extremely cruel, not just to parents, but to children.

Children should be taken away from parents when their parents can’t take care of them, and it’s dangerous and neglectful or abusive, and it shouldn’t just be for — we shouldn’t be adding to that, because the results of somebody having to grow up in foster care, unless it’s absolutely necessary, is cruel. It’s bad policy, and it’s bad for the community, it’s bad for kids, it’s bad for parents.

So there’s that type of issue. But also, I had clients who were nonviolent and had a felony charge, or they maybe had a domestic violence charge, and it wasn’t a power and control domestic violence. It was something that could be charged as a domestic violence, it was a dispute as to who was the initial aggressor often and would be charged.

And, you know, these cases aren’t perfect. And now my client, who’s a military veteran, or who’s, you know, hunted his whole life, and has wanted to bring his children out hunting, and wouldn’t be considered somebody who’s a high risk, dangerous individual, is gonna potentially have their guns taken away. You know, we should give people an opportunity to not have that happen.

I do get to decide what we charge and how we perform with our cases. And it should always be a case-by-case basis, but there’s times that we have information that somebody is truly dangerous, and in those situations, it makes sense to you know, even like for instance, for a 20-year-old, I typically don’t — I typically try to avoid felony convictions and jail time across the board, because I think it’s especially– going to jail can be can make somebody much more high risk in the future, especially if they’re young.

So if we’re going to send a young person to jail, it has to be a real, extreme and imminent public safety issue, and we do it. But it has to be, again, extreme and imminent, and with felony convictions, the same thing.

It’s like, you don’t want to convict a 20-year-old as a felony if you can avoid it, if it’s not really necessary, because a 20-year-old is not the same as they’re going to be when they’re 26, and 28, and let’s try and get them on the right track. But there’s also times where it’s so extreme, so there’s no way to just put a formula down that somebody can follow.

So that same philosophy extends to the immigration consequences in those types of cases?

Yes. And again, occasionally, it might — I mean, my staff, I believe, are ethical, and that would be the first, my first, the first thing, the most important thing for anybody that works as an attorney in my office, is that they’re ethical attorneys, and they would only do work that’s ethical.

But there are times, for instance, where you know, we wouldn’t pursue, or where we wouldn’t avoid something that we know would have a collateral consequence, because, you know, because part of the consequence should be that they’re — again, I’m the prosecutor. This is my perspective for seeking justice.

I don’t ultimately make the decisions, the judge makes decisions. But there are times where, you know, yes, there is a consequence. It could be that they leave the country, and, for instance, an OUI charge does not make a person deportable, but multiple misdemeanor convictions make someone deportable.

And it’s all really complicated, I’m going to also put that out there that it’s like, it doesn’t make any sense, like to a normal person, doesn’t make any sense to me as an attorney.

In terms of the grounds for removal?

Yeah, like for a crime to make somebody deportable, it would have to be a crime of moral turpitude. But it can also, you know — so tell me what that means.

It can be a theft, right? It can be, but then I believe a gross sexual assault is not a crime of moral turpitude, it is a felony, but — so, I mean, you would have to ask an immigration attorney.

But for instance, one OUI isn’t going to make a person deportable if they’re here, if they’re documented, right? If they’re a documented immigrant.

If you’re not [documented], then you’re deportable period, as far as I understand, so that any being charged with anything it would, you know, nothing would. It doesn’t really kind of matter either way, right? Because that person is not documented, right?

So collateral immigration consequences would be more for Green Card holders and lawful residents, or asylum seekers?

So people who are documented in one way or another, asylum seekers, Green Card, what have you, any of that.

But so we had somebody that it was like, there’s, you know, it was like their second or third OUI charge. And I don’t think — I think it was the first in our district, but it was the second or third in Maine. And the defense attorney said, well, you know, if they’re convicted, it’s this accumulation of charges, of convictions. And it turned out that the person had already had like, two drop downs because of immigration consequences.

And I looked at it, and I was like, you know, I mean, I understand, I’m not a heartless person, but I also I don’t want this person to kill me and my kid on the on the way to school, you know, like, I just don’t, and I don’t think anybody wants that.

And this person had multiple opportunities to get themselves together so they wouldn’t have these consequences, and they didn’t take advantage of that. And so from my perspective, we’re kind of — that’s not a right issue at this point. But again, your first OUI conviction, even though it is a crime that could kill my kid on the way to school, which I take great offense to, that’s not going to result in, as far as I understand, it’s not a deportable.

But, like a theft would be, any kind of fraud, I believe domestic violence, I believe assault, but you would have to ask an immigration attorney. I don’t remember. It’s a case-by-case thing that I’ll see something that comes, and the defense attorney might tell me that it’s a immigration issue.

But yeah, we’ve had a few, definitely a few cases over the years, and I’m usually involved to some extent or the other, if somebody has an ICE detainer. And we’ve, I gotta say, our Portland office — because you hear horror stories about ICE coming in and taking people — my work with them has been super respectful.

[ICE] are just people that are doing the same type of work I am, you know, like their state, they work for the government, doing a thankless job, you know, and it’s something, a job that somebody has to do, and it’s important.

But we’re not talking about people, at least in my experience, we’re not talking about people who are getting deported for innocuous crimes. We’re talking usually about serious stuff that people are on detainers, at least in my experience, it’s only been people for very serious charges. And [ICE has] let us get through our charges. If that’s, you know, we discuss it, and it’s not like, ‘Oh, we’re just going to ship this person out of the country.’

[ICE has] always been very respectful of our process, and, you know, I’ve had a good relationship. And I know they just get a lot of bad publicity, from my people, you know, I’m a quote, unquote Democrat.

Because if I go to a Democratic event, and I talk to Democrats about those, you know, there’s just, there’s some people that just believe the party — you know, the party line, and it’s the same thing with Republicans, I’m sure, believe their party line. But there’s so many people that are just, you know, just trying to do the right thing, in usually terrible circumstances.

We’ve seen a few memos from district attorneys in other states that were setting hard and fast policies and procedures about deciding not to prosecute if there’s a consequence of deportation, that is not the case in your office?

Yeah, I haven’t seen that, and I don’t know which district attorneys it’s from, but I will say one of the luxuries of being in a rural area, even though I feel completely swamped and overworked, and so does all my staff, but we have eight attorneys, not 800.

Actually, we have 10 attorneys, including myself. It’s me, we have a juvenile prosecutor, but we have eight line attorneys. I mean, I guess maybe if I had 800 attorneys, and you have to have — I still, I just feel like in work like this, if you just make these bright line rules, like, that’s not how our cases work, no case is the same. But I don’t want to criticize other district attorneys.

Maybe there’s reasons, but I personally — maybe I just have the luxury of being able to train attorneys to the extent that I can. My biggest concern about my attorneys are not concerned about my my greatest desire is to have people that have good judgment, that can do their job legally, and are decent attorneys and can learn, you know, because that’s a skill that you learn over time.

But having somebody with judgment that can look at every case as a case-by-case basis, and they’re not going to be cruel, but they’re also going to take public safety into consideration, and sometimes the collateral consequences is earned.

Collateral consequences are not things to be avoided, per se?

Yeah, but sometimes there’s a good reason why. For instance, if you’re convicted of sexual assault, then maybe you lose your medical license. And then you take everything into consideration, what’s the age of the person, you know.

We also, you know, we had a kid, an 18-year-old, who was here from another country, and he was working at a summer camp, and the kids were doing, you know, all the kids were doing drugs. They were camp counselors. They were, and I can’t tell you exactly what it was, I think it was one of those headshot drugs, but I don’t know what it is. I can’t remember, but a couple of the kids had a bad reaction, you know, basically went kind of crazy.

And I don’t think it was LSD, but it was definitely something that, you know, it wasn’t like fentanyl, definitely, and it wasn’t cocaine or crack, but it was something that made them, a couple of the kids, go kind of kind of crazy, and they got out of control, pretty out of control, and a kid kind of beat up another kid.

And it wasn’t, you know, I mean, I think they got in a fight, and, you know, one of the kids, because they were all screwed up. And again, they’re 18, and one of them was from another country, and one wasn’t. We have to decide, do we charge both of them, do we charge one of them.

And we charged, and we did do a deferred disposition in which the person you know, because it was an 18-year-old that was going to — not be able to come back to the country for doing something that the other kids did, and they were all going to get out of serious consequences.

But I remember at that time, I think there was one, maybe a parent of one of the kids that was involved, that would be all about their kid having a second chance. They were really mad that we let this other kid have a second chance. The criticism was that we were doing it, giving them special treatment because they were from away.

And it really isn’t about shouldn’t necessarily be about special treatment, but it’s about recognizing what the consequences are for each person, and for any young person. We should always take that stuff into account.

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But the only things that have to be taken into account, is, well, are they 18, and do they have a history of violence? Have they been violent before? Did they engage in treatment? Have they engaged in the things they had to engage in?

You know, usually we have a lot of that information. And again, there’s times where we say, that they did this, and yes, the consequence might be that they are not going to be here anymore. They’re going to be deported. But that’s part of the way it goes, you know? And again, it’s easy for me to say, I have it pretty easy, but it’s got to be — every single time it has to be, it has to be considered case-by-case.

Have you had any major shifts in how you view prosecutorial discretion or the collateral consequences policy since you took office?

The biggest shift, I would say, is in OUI policy, and it’s really just that I learned — when I was a defense attorney, and before I was, I mean, I didn’t just do defense, I was a general practice attorney. But the way that I had encountered OUIs was through defense, and I didn’t understand the science, because you’re not taught that as a defense attorney.

You’re not taught like that these field sobriety tests — what they mean, right? I don’t know what, how much you know about OUIs, but they do all these field sobriety tests, they do horizontal gaze nystagmus, where they put the pen light right in front of your eyes, and you follow it.

And I always thought this is just a bunch of mumbo jumbo, but it’s not. It’s science-based, and I’m somebody that believes that we should be using data and science to to drive our policies and public safety and justice and all that stuff, right?

So what I learned was that when people have a .08 [Blood Alcohol Concentration], like to tell you the truth, I mean, I think in Utah they have a .05 or .06 now, and I would be all for that. It’s what I’m most afraid of on a personal level.

I mean, I’m not somebody that lives in fear or anything. But I mean, if I’m going to think about– I told my mother the other day like the most, I keep saying it, but the most dangerous thing about flying is driving to the airport, you know? And that’s since COVID, it has gotten so out of control.

But that’s where, at first I said, let’s get people into treatment. We’ll get them into treatment, and they’ll get better, they’ll take, you know, treat their alcoholism, and they’ll get better, and then they won’t drink and drive.

And I learned that that is just not that simple. And I also learned that when you get behind the wheel with a .17, you know, I wouldn’t be able to walk, and this person’s getting behind me, you might as well be shooting down Main Street.

And I’m not even exaggerating. I mean, it’s so dangerous, and so many people get hurt and die every year, and the truly innocent. I mean, I hate to — but it’s like people that are just on the road to go, or walking down the side street waiting for the bus, I mean, that’s who’s getting hurt.

And our laws, like for first offense OUI, a $500 fine, and a 150 day loss of license, and try and get a judge to do anything more. You know, it’s not taken — it is such a serious issue, and it is not taken seriously for the harm that it really is.

So that’s I would say, if there’s one area that I’ve really changed, it’s there.

I would also say, I think when I came in, I had criticisms of prosecution and law enforcement. And I was never like somebody that didn’t like police or something like that, but I think I had criticisms that now I have learned were the limitations we have. The state is so underfunded, my office is so underfunded.

That appears to be a problem in other districts as well, right?

Yeah. I mean, I’ll tell you, like the Legislature is so into criminal justice reform, and I think, you know, I’ve been into criminal justice reform forever. I mean, that’s why I wanted to do this.

But that criminal justice reform doesn’t mean not prosecuting things anymore. It means giving us better options than just jail. But I’ll have people say to me, you know, ‘oh, we need to — you know, you can’t use jail, or you can’t put people in jail, and you can’t, you know, do any of this, except for domestic violence, all those people should be in jail.’

And I’m not saying that, like, obviously we shouldn’t put people in jail, in prison, for domestic violence, but they’re not all the same case. And there’s this perception, and I think I had a perception before I took office, that it’s like, oh, some people are gonna get better treatment, and this and that. I mean, there are huge problems, and they’re not gonna all be solved with jail and prison, and a lot of times they’re gonna be made worse.

Not that I don’t think that jail or prison could be an option, and should be an option, but I think I’ve really become more kind of aware of the limitations. You know that a seven day sentence isn’t going to make somebody stop hitting someone else, like it’s just not.

But maybe, maybe resources for a victim to be able to get out of that situation, because that’s ultimately what’s keeping somebody there, is often that they don’t have childcare, a job, an ability to get out of it financially. And that’s not something we’re going to solve by throwing someone in jail seven for seven days.

And I guess that’s just one of the things that has worn on me over the last six years, is that the tools that we need to make people safe in that situation, we don’t have. But also, when we’re doing criminal justice reform, we need to make sure — and this has happened in other states, and it’s happening here — that it doesn’t just mean there’s no consequences anymore to some of this behavior.

If you’re going to say drug addiction is a disease and we should treat it differently, then there needs to be a way to treat it differently. It can’t just be that there’s no consequences, except that you die of your overdose, you know? Because that’s what is happening.

We’re not doing the things that we need to do to keep people safe, and so it’s just not good policy right now, the way things are progressing. But that’s just something that has happened over, over the years, because there’s been so many changes. But the big change I’ve had is OUI policy, and I think that that really needs to be a big change throughout the state.

What do you make of the perception among conservatives that progressive district attorneys are soft on crime?

As far as budgets go, I’m just gonna say that as somebody who, you know — I definitely believe in reform prosecution, but there’s a Superior Court justice in the district that’s extremely conservative, and I’m kind of, what you might say is extremely progressive, but it’s because I’m kind of libertarian, and he is too.

So we end up coming together, and we have practically exactly the same beliefs around criminal justice, even though we are coming from it from different perspectives. But, and there is — we are spending the most money we could, to have the worst results that we — not just the worst, it’s like we’re paying to make people more dangerous, to make the community less safe. That’s what I mean.

That’s how I feel about current policy, like legislation and just, you know, there’s all the money that you want to put people in jail and prison, and sometimes that’s a good thing to be able to do that. Now we have judges that won’t let us do that sometimes, right, even though they should be. That’s what the jail’s there for, but we don’t have a hospital that can take a person who’s severely mentally ill and dangerous, and has access to guns and shouldn’t, and we all agree on that.

And so when something terrible happens, we want to take law-abiding citizens guns away, but we don’t think, you know — these progressives don’t — they don’t think, why don’t we do something about the people that shouldn’t have access to guns, and why don’t we do something about the people who have serious mental illness and need treatment, and need to go to a hospital? Why don’t we deal with that, instead of taking everybody else’s guns away?

Because then, then we don’t have protection when we need it. I mean, I grew up in a hunting family. We can’t go hunting when we want to, and it’s not going to solve the problem. So I just wish you know, there was more sane thinking around it, and I wish that we weren’t so tribal.

You said there tends to be a lot of overlap when it comes to public safety?

Yeah, and not pay a ton of money in taxes to, just like, get absolutely nothing back — I mean, to get the opposite of what we think we’re paying for back.