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Transcript
OVERCOMING IMPLICIT BIAS
AGAINST NON-CITIZEN
DEFENDANTS
Presented by the
American Bar Association
Commission on Immigration,
Criminal Justice Section and
Center for Professional Development
American Bar Association
Center for Professional Development
321 North Clark Street, Suite 1900
Chicago, IL 60654-7598
www.americanbar.org
800.285.2221
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The materials contained herein represent the opinions of the authors and editors and should not be
construed to be the action of the American Bar Association Commission on Immigration, Criminal
Justice Section or Center for Professional Development unless adopted pursuant to the bylaws of the
Association.
Nothing contained in this book is to be considered as the rendering of legal advice for specific cases, and
readers are responsible for obtaining such advice from their own legal counsel. This book and any forms
and agreements herein are intended for educational and informational purposes only.
© 2016 American Bar Association. All rights reserved.
This publication accompanies the audio program entitled “Overcoming Implicit Bias Against Non-Citizen
Defendants” broadcast on January 11, 2016 (event code: CE1601FSS).
Welcome
Overcoming Implicit Bias Against
Non-Citizen Defendants
Angie Junck, Supervising Attorney, Immigrant Legal Resource Center
Michael Light, Professor, Purdue University
Daniel DeGriselles, Public Defender, San Bernardino County Public Defender’s Office
Register for more FREE CLE
www.americanbar.org/cle/free_cle.html
Overcoming Implicit Bias Against
Non-Citizen Defendants
AMERICAN BAR ASSOCIATION
JANUARY 11, 2016
Speakers
Angie Junck, Supervising Attorney, Immigrant Legal Resource Center &
Commissioner, ABA Immigration Commission
[email protected]
Dan DeGriselles, Deputy Public Defender, Human Services/Immigration
Consequences Advising, San Bernardino County Public Defender’s Office
◦ [email protected]
Michael T. Light, Assistant Professor of Sociology, Purdue University
[email protected]
Topics
I:
II:
III:
• The Facts about Immigrants and Immigration in the U.S.
• The Punishment of Noncitizen Defendants in the Criminal Justice System
• Eliminating Bias Against Noncitizen Defendants in Practice & Consideration of
Immigration Issues
• Questions
Objectives
1.
2.
3.
• Dispel common myths about immigrants and immigration in the U.S.
• Understand the legal treatment of noncitizens in U.S. federal courts and how their
treatment compares to other forms of well-known disparities such as race and
ethnicity.
• Bring the issue of citizenship disparity to the fore (like race) to try and ameliorate
any bias throughout the criminal justice system.
Part I: Facts About Immigrants &
Immigration in the U.S.
ALIEN INVASION
Fact or Myth?
MUSLIM IMMIGRANTS TODAY
“Donald J. Trump is calling for a total and complete
shutdown of Muslims entering the United States
until out country’s representatives can figure out
what the hell is going on.”
- D.J. Trump, Dec. 7, 2015, reaffirming his earlier antiMuslim statement
http://www.cbsnews.com/news/donald-trump-calls-for-total-and-complete-shutdown-of-muslims-entering-u-s/
MUSLIMS: SOME FACTS
• Muslims present in the US in the 1700’s.
• The Moslem Association of America: formed in 1919 in Sacramento.
Professor Erika Lee, "The Making of Asian America," (2015), page 161.
• 1.2 billion Muslims worldwide, 1.3 million self-reported in the US by
survey in 2008.
Self-Described Religious Identification of Adult Population, US Census Bureau.
• Of the top five countries with the largest Muslim population, not one is
an Arab nation.
http://www.mapsofworld.com/world-top-ten/world-top-ten-countries-with-largest-muslim-populations-map.html
• Arabs make up only about 20% of the worldwide Muslim population.
SYRIANS TODAY
"I am putting the people on notice that are
coming here from Syria as part of this mass
migration, that if I win, if I win, they are
going back, they are going back. I am telling
you, they are going back.”
http://www.usatoday.com/videos/news/nation/2015/09/30/73124602
AGAIN, SOME FACTS ON SYRIANS
• Approx. 86,000 Syrian immigrants resided in the US in 2014.
• The earliest Syrian immigrants in US fled Christian violence in late 19th and
early 20th centuries.
• The second wave occurred when the INA of 1965 abolished national origin
quotas:
• 1960-2000: grew from 17,000 to 55,000.
• 2000-2010: grew to 60,000.
• 2010-2014: grew to 86,000 (Syrian civil war began in 2011).
• In 2014: 64% of Syrian immigrants in US were naturalized US citizens.
•
Jie Zong, Migration Policy Institute, "Profile of Syrian Immigrants in the United States," Nov. 2015
Nationality
Nationality
Religion
Nothing Changes.
In Our Job
The Great Immigration Debate
Is irrelevant.
THE IMMIGRATION CYCLE
• 4.
• ACCEPTANCE
• 1.
• INFLUX
1.
•
3.
ASSIMILATION
INFLUX
2.
RESENTMENT
4.
ACCEPTANCE
3.
ASSIMILATION
•
2.
RESENTMENT
MYTHS: are easy; FACTS are hard.
1. They’re criminals. (Mexico sends murders
and rapists, ISIS sends terrorists.)
2. They take jobs.
3. They don’t pay taxes , they use welfare and
other public resources.
4. We don’t protect our borders.
A COUPLE OTHER MYTHS
People are, by nature, rational.
People make rational, fact driven
decisions.
Mere Exposure Effect
See Thinking, Fast and Slow by Daniel Kahneman 2011

Author is Recipient: Nobel Prize in economic sciences.

“Repetition induces cognitive ease

and a comforting feel of familiarity.” p. 66

“the link between the repetition of an arbitrary stimulus

and the mild affection that people eventually have for it

. . . The mere exposure effect.” p. 66.
BIOLOGY
“The effect of repetition on liking is
a profoundly important biological
fact, and that it extends to all
animals.”
- Emphasis added, p. 67.
Hitler and Goebbels knew of what they spoke
“The broad masses . . . Always . . . more
readily fall victims to the big lie than the
small lie.”
◦Mein Kampf
“If you repeat a lie often enough, it
becomes the truth.”
◦Goebbels
Immigrants & Crime Increases?
Half of adults in the U.S. say immigration in the U.S. is making crime worse.
But…
Crime rates nationally fell from as the size of the immigrant population
grew between 1990 and 2010.
U.S. population grew from 7.9 percent to 12.9 percent and the number
of undocumented immigrants tripled from 3.5 million to 11.2 million.
During the same period, FBI data indicates the violent crime rate
declined 45 percent and the property crime rate fell 42 percent.
The decline occurred nationally, in border cities and other cities with
large immigrant populations such as San Diego, El Paso, Los Angeles,
New York, Chicago, and Miami.
"Modern Immigration Wave, Brings 59 Million to U.S., Driving Population Growth and Change Through 2065, Views of Immigration’s Impact on U.S. Society
Mixed," Pew Research report issued Sept. 25, 2015, page 57. "From Anecdotes to Evidence: Setting the Record Straight on Immigrants and Crime," Immigration
Policy Center, July 2013.
Immigrants & Criminal Convictions
Some Statistics:
◦ ICE detainer (requests to local law enforcement to hold immigrants for
transfer of custody to federal immigration authorities) issuance on the
decline.
◦ October 2014: 11,355
◦ April 2015: 7,993
BUT as of April 2015, only 32% on whom detainers were placed had
been convicted of a crime.
Transactional Records Access Clearing House, http://trac.syr.edu/immigration/reports/402/
Immigrants & Taxes
FACT: MANY Undocumented Individuals Pay
Taxes
In 2012, estimated to be paid: in excess of 11
billion dollars in state and local taxes.
1.1 billion of that as personal income taxes.
ITIN Number: foreign investors, the
undocumented.
“Hidden” Taxes: property and sales taxes.
The Institute on Taxation & Economic Policy, 2015, Undocumented Immigrants’ State & Local Tax
Contributions, http://www.itep.org/immigration/
Social Security? ITIN?
ITIN: IRS issues ITINs to individuals who are required to have a
U.S. taxpayer identification number but who do not have, and
are not eligible to obtain, a Social Security Number.
ITINs are issued regardless of immigration status because
both resident and nonresident aliens may have a U.S.
filing or reporting requirement under the Internal
Revenue Code.
An ITIN does not authorize work in the U.S. or provide
eligibility for Social Security benefits or the Earned Income
Tax Credit.
Immigrants & Economic Impact
Small but positive fiscal effect: Organization for Economic
Cooperation and Development: “2013 International Migration
Outlook.”
In most countries, fiscal impact very small in terms of GDP,
around zero on average across most countries considered.
(Gross Domestic Product.)
The impact, whether negative or positive, rarely exceed
0.5% of GDP in a given year.
See report summary at
http://www.slate.com/blogs/the_world_/2013/08/28/oecd_study_immigrants_have_small_but_positive_fiscal_effect.html?wpisrc=new
sletter_jcr:content
Immigrants & Welfare
Public Charge doctrine: Immigration Act of 1882.
Anyone “likely to become a public charge” is inadmissible
(barred from immigrating).
Affidavits of support: Form I-864 filed by sponsor.
Variety of Factors: age, health, family status, assets,
resources, financial status, education and skills. 8 USC
1182(a)(4), 22 CFR 40.41; IIRIRA 531(a).
Example: Immigrants Subsidize
Medicare Recipients
Immigrants contributed about $115 billion more
from their paychecks than they took out over a
seven year period.
Could not include contributions from undocumented who paid
illegally through fake social security numbers.
USA Today, 5/29/2013, “Immigrants Subsidize Medicare Recipients, Study Says.” Report: Zallman (2014) “Staying Covered: How Immigrants Have Prolonged The
Solvency of One of Medicare's Key Trust Funds and Subsidized Care for U.S. Seniors;” Partnership for a New American Policy.
Facts regarding the Border
• U.S./Mexico border: 1951 miles long.
• Actual fence: existing segments have cost about $2.4 billion to build
(maintenance not included) and cover about 600 miles.
• Virtual Fence: about 53 miles, abandoned in 2011, $1.1 billion price tag.
• Contract to try the virtual fence again are currently out for bidding.
• Canadian Border: app. 4,000 miles
• Atlantic and Pacific borders: app. 5,000 miles
• Totally secured borders?
IMMIGRATION ENFORCEMENT SPENDING
“The United States government spends more on federal
immigration enforcement than on all other principal federal
criminal law enforcement agencies combined, with the
nearly $18 billion spent in fiscal 2012, approximately 24%
higher than collective spending for the FBI, Drug
Enforcement Administration, Secret Service, U.S. Marshals
Service and Bureau of Alcohol, Tobacco, Firearms and
Explosives.” http://www.migrationpolicy.org/research/immigration-enforcement-united-states-rise-formidable-machinery
Another Myth: Deterrence
In criminal law courts, punishment does not deter conduct.
Assumptions underlying deterrence theory:
Individuals to be deterred are rational actors;
Individuals know the potential consequences;
They rationally consider consequences before acting;
Certainty of apprehension versus severity of penalty;
What is the likelihood of:
 Capture,
 Prosecution.
◦ “Rethinking Entry and Re-Entry; Does Criminal Law Deter? A Behavioral Science Investigation” 24 Oxford J. Legal Stud. 173 (2004)—
an overview of literature.
Deterrence & Border Crossing
In the August 2013 issue: “Deciding to Cross: Norms and Economics
of Unauthorized Migration,” a study authored by USC Gould law
professor Emily Ryo found:
 Neither threat of arrest nor punishment significantly deter Mexicans from
trying to enter the US illegally.
 Participants viewed themselves as moral actors who respect national
borders.
BUT
 Decision to cross the border is affirmation of their moral obligation to their
families to get through tough times like crop failure or economic downturn.
What do we Believe?
"The New Colossus" is a sonnet by Emma Lazarus (1849–87),
written in 1883 and, in 1903, engraved on a bronze plaque
and mounted inside the lower level of the pedestal of
the Statue of Liberty.
"Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!
And if so,
Do we do so based upon
fact, or myth?
In the legal profession: it’s often the advocate’s
duty to defend
“A nation's greatness is
measured by how it treats its
weakest members.”
-Ghandi
Part II: The Punishment of Noncitizen
Defendants in the Criminal Justice
System
Noncitizens in the Criminal Justice
System
I.Trends in Immigration & Deportation
II.Noncitizens in the (Federal) Criminal Justice
System
III.The Punishment of Noncitizens
Immigration: 1850-Present
Deportations: 1990-Present
Noncitizens in State & Federal Prisons
2012
In 2012, there were a total of
92,892 noncitizen state and federal
inmates
70,000
60,000
50,000
40,000
30,000
20,000
10,000
0
State
Federal
Source: Prisoners in 2012, Bureau of Justice Statistics
(http://www.bjs.gov/content/pub/pdf/p12tar9112.pdf)
Noncitizens in Federal Prison
50,000
45,000
40,000
Immigration offenses accounted for 56%
of the growth in federal prison
admissions b/w 1998 and 2010 (Urban
Institute, 2012)
35,000
30,000
25,000
20,000
15,000
10,000
5,000
0
1985
2015
Source: Authors compilation from Sourcebook of Criminal Justice Statistics
U.S. Sentencing Commission, 1992-2011
30,000
35
30
25,000
“Dramatic growth over the past two decades in the number of offenders
sentenced in federal courts has been driven primarily by enforcement of a
particular immigration offense—unlawful reentry into the United States.”
20,000
25
20
% of total docket
15,000
15
10,000
10
Number of unlawful entry
offenses
5,000
0
1992
1994
1996
1998
2000
2002
2004
2006
2008
5
2010
0
Source: Pew Research Center analysis of United States Sentencing
Commission Monitoring of Federal Criminal Sentences data
Demographics of U.S. Federal Courts
White
Black
Hispanic
Non-citizen
60
Percent of Convictions
50
40
30
20
10
0
1992
1994
Source: Pew Research Center analysis of United States Sentencing
Commission Monitoring of Federal Criminal Sentences data
1996
1998
2000
2002
2004
2006
2008
2010
2010
The Legal Treatment of Noncitizens
Light, Massoglia, King (2014) – “Citizenship and
Punishment: The Salience of National Membership in U.S.
Criminal Courts” (American Sociological Review)
Research Question: How are non-U.S. citizens punished
relative to their citizen counterparts in U.S. federal courts?
DATA
Individual cases sentenced in U.S. federal courts 2008.
 Trend analysis uses data from 1992-2008.
 Removing “unlawful enterers”
 “Fixed” District effects
Dependent Variables:
1. Incarceration
2. (ln) Sentence Length
Independent Variables:
◦ Presumptive sentence
◦ Multiple Convictions
◦ Criminal history
◦ Offense Type
◦ Trial
oEducation
oDepartures
oRace/ethnicity
oCitizenship Status
oSex
oAge
Incarceration Decision by Race/Eth. and Citizenship
4.0
3.5
Odds Ratios
3.0
2.5
2.0
1.5
1.0
Black
Hispanic
Other Race
Noncitizen
Incarceration Decision by Race/Eth. and Citizenship
4.0
3.5
Odds Ratios
3.0
2.5
2.0
1.5
1.0
Black
Hispanic
Other Race
Noncitizen
Sentence Length by Race, Ethnicity, and Citizenship
Percent Increase in Sentence Length
0.06
0.05
0.04
0.03
0.02
0.01
0.00
Black
Hispanic
Other Race
Noncitizen
Sentence Length by Race, Ethnicity, and Citizenship
Noncitizens receive ~3.5
months of additional
incarceration, net of controls.
Percent Increase in Sentence Length
0.06
0.05
0.04
0.03
0.02
0.01
0.00
Black
Hispanic
Other Race
Noncitizen
Incarceration – Joint Effects of Race/Eth. and Citizenship
7.0
6.0
Odds Ratios
5.0
4.0
3.0
2.0
1.0
0.0
Black
Hispanic
Other
White
U.S. Citizen
Black
Hispanic
Other
Non-U.S. Citizen
Length – Joint Effects of Race/Eth. and Citizenship
Percent Increase in Sentence Length
0.08
0.07
0.06
0.05
0.04
0.03
0.02
0.01
0.00
Black
Hispanic
U.S. Citizen
Other
White
Black
Hispanic
Non-U.S. Citizen
Other
Trends in Racial, Ethnic, and Citizenship Disparity: Incarceration 19922008
1.6
1.4
1.2
b coefficients
1.0
Non-Citizen
0.8
Black
0.6
Hispanic
0.4
0.2
0.0
1992
1994
1996
1998
2000
2002
2004
2006
2008
Other Sources
USSC 2012 Booker report: Noncitizens receive sentences that are 10.4 percent
longer than U.S. citizens after Gall.
Light, Michael T. 2014. “The New Face of Legal Inequality: Noncitizens and the
Long-Term Trends in Sentencing Disparities across U.S. District Courts, 19922009.” Law & Society Review 48: 447-478.
◦ Increased citizenship disparity explains the majority of the increase in
Hispanic-white disparity over the past two decades.
Potential Mechanisms?
U.S. Federal Court Judges: (8 total)
• “West Coast District”
• “East Coast District”
◦ 50 different nationalities
Landgerichte Judges: (6 total)
• “East German City”
◦ 100 different nationalities
Source: Light, Michael T. 2015. “Legal Inequality’s Newest Face.” Contexts
14: 32-37.
Explaining the Punishment Gap
Resentment
• “Why are you screwing the country that has taken you in? It actually pisses me off!
... It does annoy me.”
• “I can certainly understand that as a view and, you know, there is something to be
said for that; you come to my country, my birthplace, the land that I love and I’ve
sworn to uphold and protect, and what do you do here? You commit crimes, and
some of these crimes are absolutely devastating to American citizens. So I don’t
think there’s anything wrong with that sentiment… So is that worse than an
American citizen who does it? I certainly wouldn’t chastise the person who
concluded that that was the case.”
Explaining the Punishment Gap
Resentment
• “Is there an annoyance because some of these criminals are basically biting the
hand that feeds them? Yes. Does that translate into an enhanced sentence?
Probably not. What it does do, it will offset, perhaps, some other mitigating factors,
okay? …I do, I feel it, and it really does upset me, and I've said as much on the
record, particularly when the plea is the terrible conditions that this person was
living in, in Uzbekistan and how they've come to the promise land. I'm going,
“Well, damn it. Why are you crapping all over the promise land?” And once again,
what happens is that if you have raised some legitimately mitigating factors, it gets
washed out.”
Explaining the Punishment Gap
Social Marginalization
• Absconding
“They know nothing other than the United States…And so if you have them in your clutches,
you better hang onto them because if you're talking about sending them back to Chile.
They're in the wind….”
“This is custodial. That's all it is. We're just gonna warehouse you. Maintain custody of you
until ICE gets you. Maybe that's all there is…We're not going to give you a noncustodial
sentence, for example, even if you might give someone else probation. We're not gonna do
that. Because, what, we're gonna put you on five years' probation? Oh, by the way, sometime
during the course of that probation, ICE is gonna come pick you up. Yeah, good luck with
that.”
Explaining the Punishment Gap
Recidivism
“you gotta show me you got a marketable skill. If you don't have a marketable skill,
then I'm gonna be thinking you have no legitimate way of making it right…and so I'll
just punish you.”
“because of their status, they don't have a snowball's chance in hell of going
straight because they can't get a job. So I will see them for supervised release
violations, which starts the cycle all over again.”
Explaining the Punishment Gap
Cultural Practices
“Now one of the things I've noticed from a lot of the Hispanic illegal aliens that I
find here…they don't seem to have a great deal of problem in beating up their
women, and that bothers me… It just seems to be a cultural thing I keep
encountering.”
Other Explanations:
“Would I sentence him differently if he is illegal and no detainer has been
filed?…It's another area in which a violation has occurred, whether it's being
prosecuted or not. It is, in effect, I guess, another crime. Yeah, you probably would
think about it.”
Discussion & Conclusions
1. Citizenship is a salient predictor of harsh punishment in U.S. federal
courts.
2. National membership may be an emerging axis of legal inequality.
3. Going beyond debates on legal rights, it is clear that citizenship
remains highly consequential under the law.
Part III: Eliminating Bias Against
Noncitizen Defendants in Practice &
Consideration of Immigration Issues
Eliminating Bias Against Noncitizens
“[A]n intriguing body of experimental evidence shows that racial
stereotypes operate to a great extent at a subconscious level, out
of individuals’ routine awareness.” -Harris 2007
“People are capable of making decisions and acting on the basis of
racial/ethnic stereotypes and biases without intending to do so,
and without being aware of it.” -Devine 2001
Eliminating Bias Against Noncitizens
However, when people are alerted to the issue of
bias, this tends to bring stereotypes and biases into
awareness and people typically become more careful
not to discriminate.
- Sommers and Elsworth 2000; 2001.
Differential Treatment of Noncitizen Defendants
Denial of bail or increase in bail
The presence of an immigration detainer may greatly increase local
jail time (both pretrial and post-sentencing)
Denial of alternatives forms of incarceration e.g., diversion,
drug/alcohol treatment
Higher jail security classifications; denial of certain work assignments
Local law enforcement coordination with federal immigration
authorities may cause defendant to fail to appear in court and violate
probation
65
© 2014 IMMIGRANT LEGAL RESOURCE CENTER
State Bail Laws & Immigration Status
Ala. Code § 31-13-18(b)
- categorically denies
bail to undocumented
immigrants.
Not in effect because it
violates the AL
Constitution. Hispanic
Interest Coal. of
Alabama v. Bentley, No.
5:11-CV2484-SLB
(N.D.Ala. Nov. 25,
2013)
Arizona
Mo. Ann. Stat. §
544.470(2) – no bail if
the judge reasonably
believes you are
undocumented.
Alabama
Missouri
Three states have bail statutes categorically denying bail to undocumented immigrants
◦ But two have been struck down by courts
Prop 100/Const. Art.
22(A)(4) – denies bail
for a range of offenses
to anyone who “has
entered or remained in
the country illegally.”
Struck down by 9th Cir.
in Lopez-Valenzuela v.
Arpaio, 770 F. 3d 772
(9th Cir. 2014)
Immigration Status & Right to Bail
U.S. v. Salerno, 481 U.S. 739 (1987)
◦ Bail impacts the fundamental right to liberty
◦ Restrictions are subject to strict scrutiny. See Lopez-Valenzuela.
◦ States have a compelling interest in ensuring that people are present at trial
◦ Pre-trial detention is a legitimate way of ensuring appearance. Bell v. Wolfish,
441 U.S. 520 (1979).
Immigration Status & Right to Bail
Lopez-Valenzuela v. Arpaio, 770 F. 3d 772 (9th Cir. 2014)
◦ Denial of bail to all undocumented immigrants without individualized
assessment of flight risk is not narrowly tailored.
◦ “Although the state has a compelling interest in assuring that arrestees, including
undocumented immigrants, appear for trial, Proposition 100 is not carefully
limited to serve that interest.”
◦ “There is no evidence that undocumented status correlates closely with
unmanageable flight risk.”
◦ Struck down the law for violating substantive due process
Federal Defendants
18 U.S.C. 3142(d) provides for temporary detention for ICE to decide if they want to
deport the person in lieu of prosecution, otherwise immigrants get bail like anyone
else.
◦ Many federal courts have interpreted this provision and related sections as otherwise
limiting consideration of immigration status in bail determinations
◦ Immigration status can be taken into account in flight risk, but many courts found an ICE
detainer too speculative to have any impact on the flight risk determination
◦ Also some courts found that flight risk under the Bail Reform Act requires volition of the
defendant, and that possible action by the government is not a proper consideration
http://nationalimmigrationproject.org/legalresources/practice_advisories/pa_Federal_Bail_Advisory
.pdf
Form I-247D (Detainer Request)
Immigration Consequences of Crime
“[I]mmigration reforms over time have expanded the class of deportable
offenses and limited the authority of judges to alleviate the harsh
consequences of deportation. The ‘drastic measure’ of deportation or
removal . . . is now virtually inevitable for a vast number of noncitizens
convicted of crimes.”
- Padilla v. Kentucky, 130 S. Ct. at 1478.
Immigration Consequences
of Criminal Dispositions
 Deportation (sometimes mandatory)
 Detention during deportation case (sometimes mandatory)
 Bar to getting lawful immigration status (e.g. green card, asylum,
temporary protected status, student or work visas)
 Bar to citizenship (temporary or permanent)
 Bar to relief from deportation
 Bar to returning to U.S. after trip abroad or after deportation.
Individual Facts Determines Imm
Consequences




-
Immigration status
Criminal history
Prior deportations
Family ties
ABA Pleas of Guilty Standard 14-3.2(f), commentary at p. 127
Padilla v. Kentucky:
U.S. Supreme Court Holding
• Sixth Amendment requires defense counsel to provide
affirmative, competent advice to a noncitizen defendant
regarding the immigration consequences of a guilty plea and
defend against such consequences.
• Absent such advice, a noncitizen may raise a claim of
ineffective assistance of counsel.
Padilla v. Kentucky
• U.S. Supreme Court disagreed with the Kentucky Supreme Court’s
decision that deportation is a collateral consequence and therefore,
falls outside the scope of the Sixth Amendment.
• The Court observed increasing harshness of immigration laws over
past 90 years and concluded: “Accurate legal advice for noncitizens
accused of crimes has never been more important.”
• The Court found that constitutionally competent counsel would
have advised Mr. Padilla that his conviction for drug distribution
made him subject to automatic deportation.
Padilla v. Kentucky:
Key Point
Deportation is a “particularly severe penalty” that is “intimately
related” to the criminal process.
Advice regarding deportation is not removed from the ambit of
the Sixth Amendment right to effective assistance of counsel.
Padilla v. Kentucky:
Key Point
“Informed consideration” of immigration consequences
by the defense and the prosecution during plea
negotiations, in order to reduce likelihood of
deportation and promote interests of justice, is
appropriate.
- Padilla, 130 S. Ct. at 1486.
Alternative Plea Negotiations
Alternative plea agreement: An alternative plea that is of a similar nature and
severity to the originally charged offense, but exposure to disproportionate
immigration penalties.
Alternative sentencing agreement: The defense and prosecution may agree to
alter the sentencing component of the plea.
Modified record of conviction: The prosecutor may modify the language
included in documents in the court file that pertain to the criminal charges,
conviction, or sentencing, so as to mitigate the potential immigration
consequences of the conviction.
Access to pre-plea treatment programs: The defense and prosecution may
work together to ensure that noncitizen defendants can participate in courtsponsored treatment programs, often referred to as deferred prosecution or
diversion programs, without first entering a plea of guilty.
Resources
•Light, Massoglia, King (2014) – “Citizenship and Punishment: The Salience of National
Membership in U.S. Criminal Courts” American Sociological Review.
•Light, Michael T. 2014. “The New Face of Legal Inequality: Noncitizens and the Long-Term Trends
in Sentencing Disparities across U.S. District Courts, 1992-2009.” Law & Society Review 48: 447478.
•The Bail Reform Act and and Release from Criminal and Immigration Custody for Federal Criminal
Defendantshttp://nationalimmigrationproject.org/legalresources/practice_advisories/pa_Federal
_Bail_Advisory.pdf
•Prosecuting Post-Padilla: State Interests and the Pursuit of Justice for Noncitizen Defendants
•Prosecutors' Consideration of Immigration Consequences in Light of Padilla
http://www.ilrc.org/resources/prosecutors-consideration-of-immigration-consequences-in-lightof-padilla
Resources Continued…
•Ensuring Compliance with Padilla v. Kentucky without Compromising Judicial
Obligations: Why Judges Should Not Ask Criminal Defendants About Their
Citizenship/Immigration Status (January 2011)
•Judicial Obligations After Padilla v. Kentucky: The Role of Judges in Upholding
Defendants’ Rights to Advice About the Immigration Consequences of Criminal
Dispositions
•National Practice Advisory: Duty of Defense Counsel Representing an Immigrant
Defendant After Padilla v. Kentucky http://immigrantdefenseproject.org/wpcontent/uploads/2012/01/Padilla_Practice_Advisory_011712FINAL.pdf
•Other Resources for Criminal Defenders – www.defendingimmigrants.org
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The Dealmaker’s Commandments
Jeff B. Cohen
Cohen Gardner LLP
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