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
Staffer, Criminal Law Practitioner
No comments:
Post a Comment