Tuesday, March 3, 2015

The Plight of the Spanish-Speaking Public Defender

The role of a public defender has always played an important role in the criminal law system.  Guaranteed by the Sixth Amendment, every individual has a right to the assistance of counsel for his defense against any criminal charges brought against him.  However, as the Hispanic community in the United States grows, a unique issue in the criminal justice world has surfaced.

Public defenders who speak Spanish fluently are few and far between. Some public defense offices only have one or two Spanish-Speaking attorneys on their staff[1].  This means that those attorneys who have that specific skill set work, almost exclusively, with a Spanish-speaking clientele.  When working with a population with such a high percentage of non-U.S. citizens, these public defenders run into a conflict between providing adequate advice concerning their client’s criminal charges and preventing their clients from encountering additional immigration issues after their court mandated legal representation ends[2].

Plea bargains are a large part of the prosecutorial process.  In a plea bargain, the defendant pleads guilty to all or some of the charges against them in an agreement with the prosecution to reduce their sentence, or the number and severity of the charges.  About 90-95% of criminal cases at the state or the federal level end in a plea bargain.  Agreeing to a plea can have severe effects on one’s immigration status.  Whether one is a lawful permanent resident or in the United States on a temporary visa, pleading guilty to any number of crimes can alter one’s immigration status to “inadmissible" or “removable.”

Under 8 U.S.C. § 1101(a)(43), aggravated felonies such as murder, drug trafficking, rape or sexual abuse of a minor; and crimes of violence with a sentence of one or more years lead to removal.  Additionally, there are a number of crimes that can alter one’s immigration status to “inadmissible.”  An “inadmissible" status, defined under 8 U.S.C. § 1182(a), means that admission to the United States can be denied.  Non-US citizens with an “inadmissible” status are unable to receive visas or re-enter the United States if they ventured abroad for any reason.  In general, crimes involving violations of laws concerning controlled substances or crimes involving moral turpitude such as theft, voluntary manslaughter, and rape or other certain sexual crimes result in an “inadmissible" status.  However, a conviction of multiple crimes that render one “inadmissible” can cause the immigration status to move from “inadmissible” to “removable.”

Public defenders are court appointed counsel. Their counsel ends when the case to which they’ve been assigned has been resolved.  This means that any adverse immigration consequences that their clients encounter while facing their criminal charges do not fall within the duties of the public defender because the immigration charges are different from their criminal charges.  Additionally, since immigration charges are civil in nature, their clients are not guaranteed counsel when dealing with these new charges.  This is where the conflict of being a great criminal defense attorney and arranging the best deal with the prosecution for their clients and their interest in helping their clients maintain their lawful permanent resident immigration status presents itself.

In Padilla v. Kentucky, defense counsel’s role in navigating the conflicts between criminal and immigration law were set out.  The Supreme Court held that when the risk of removal resulting from the guilty plea is clear, counsel must advise their client as such.  However, when deportation is less clear or when the consequence will only be that their client’s immigration status becomes “inadmissible,” the counsel only has to advise their client that “pending criminal charges may carry a risk of adverse immigration consequences.”  These instructions are rather minimal, and often times public defenders find themselves advising their clients of their pending immigration concerns as much as possible before the litigation concerning their criminal charges is over[3].

Non-US citizens who are facing immigration charges due to a plea bargain and are being represented in criminal court by a paid attorney have the option to continue using the same representation in their civil litigation as long as they can pay for it and their attorney is amenable to doing so.  However, if an non-US citizen has been assigned a public defender, they do not have the option of continuing with the same legal representative.  Even if paid representation in civil court was financially accessible, they would be dealing with new representation as public defenders are agents of the government and only deal with criminal charges.  This results in public defenders making decisions to the best of their ability to help their clients with their criminal charges, knowing full well that their clients’ battle with the legal system has just begun.  This presents a difficult dilemma to public defenders; should they encourage their clients to take a plea and advise them as much as they can concerning their future immigration charges, or should they take the case through a long and stressful trial in an attempt to avoid any changes to their client’s immigration status?

Kieley Sutton
Staffer, Criminal Law Practitioner

[1] Interview with an anonymous public defender in Virgina <Jan. 28, 2015>.
[2] Id.
[3] Id.

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