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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 CDs, DVDs, ONLINE COURSES, DOWNLOADS, and COURSE MATERIALS ABA self-study products are offered in a variety of formats. Find our full range of options at www.ShopABA.org Submit a Question Visit https://americanbar.qualtrics.com/SE/?SID=SV_2uB91twXeymw6FL&pCode=CE1601FSS to submit a question on the content of this course to program faculty. We’ll route your question to a faculty member or qualified commentator in 2 business days. 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 Thank you for joining us Register now for the upcoming program in the series! The Dealmaker’s Commandments Jeff B. Cohen Cohen Gardner LLP Monday, February 8, 2016 1:00 PM – 2:30 PM ET www.americanbar.org/cle/free_cle.html CLE Credit Request Instructions Please stay online… The program evaluation link will appear shortly. Click on the link to take the program evaluation. 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