The problem with this new approach is that it creates separate, unequal justice systems for two categories of people, based on citizenship--an apparent violation of Title III of the Civil Rights Act, which prohibits discrimination on the basis of national origin. An illegal immigrant arrested for document fraud, in this view, should be charged lightly because he might get deported; a citizen arrested for the same crime faces no such collateral penalty, so he can be charged as harshly as possible.

"I regret to say that we've seen district attorneys openly brag about not charging cases appropriately--giving special treatment to illegal aliens to ensure these criminal aliens aren't deported from their communities," said Attorney General Jeff Sessions recently. "They advertise that they will charge a criminal alien with a lesser offense than presumably they would charge a United States citizen. It baffles me."

Sessions should bring federal civil rights charges against any jurisdiction shown to be affording such special treatment to criminal aliens. The Supreme Court held  that "classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny." Alienage is the state or condition of being a noncitizen; if prosecutors are allowed to treat the native born or naturalized more harshly than aliens, then perhaps we will soon need to include citizens as a protected class. Selective prosecution of any group of people cannot be permitted in the United States.