THE MANDATE OF PADILLA. How Public Defenders Can and Must Provide Effective Assistance of Counsel to Noncitizen Clients

Transcription

1 THE MANDATE OF PADILLA How Public Defenders Can and Must Provide Effective Assistance of Counsel to Noncitizen Clients BY ANGIE JUNCK, NADINE K. WETTSTEIN, AND WENDY S. WAYNE 24 CRIMINAL JUSTICE n Summer 2016

2 this year marks the twentieth anniversary of the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) (1996 laws), two significant federal immigration laws that are the blueprint for today s mass deportation crisis. These laws have had enormous impact on immigrants with contact with the criminal justice system. With hundreds of deportations each year and a record number of deportations over the last decade, these laws have wreaked havoc on immigrant communities across the country. The 1996 laws expanded mandatory detention and deportation and limited judicial review of immigration decisions under the auspice that Congress would deter unauthorized immigration and terrorism in the United States. But this massive expansion of the grounds of deportation and detention without bond created an illogical and unworkable system: low-level immigration officials often act as judge and jury, immigrants are expelled for minor crimes, immigration judges have limited authority to halt deportations, and immigrants are often barred from appealing their cases to federal courts. Making matters worse, this deterioration of due process for those in deportation proceedings operates in a system where the vast majority of immigrants navigating this legal quagmire are totally unrepresented. The impact that even a misdemeanor criminal offense can have on a person s life, by virtue of these laws, cannot be understated. One conviction can result in permanent, automatic deportation to a country a person hardly knows regardless of his or her length of residence in the United States, U.S. citizen children, community ties, rehabilitation, and military service. Even after a person has served his or her sentence in the criminal justice system, he or she is funneled into a deportation system involving detention in a hodgepodge of jails all over the country, run often by for-profit corporations, without a right to government-appointed counsel. Indeed, approximately 84 percent of detained immigrants are completely unrepresented in their deportation proceedings. For many, this translates into a oneway ticket to deportation and permanent separation from friends and family. With criminal defenders the first and often only line of defense that immigrants will ever receive, it is critical that they are adequately equipped to provide effective representation to this vulnerable population. With access to experts and resources, defense attorneys can ensure that their clients are properly advised of the immigration consequences of their criminal cases, so that they can make informed choices throughout the criminal case. Informed defenders can make all the difference in someone s immigration case, and often can even obtain a disposition that lessens or avoids these harsh penalties, including deportation. BUILDING THE CASE FOR EFFECTIVE REPRESENTATION OF NONCITIZENS: PADILLA V. KENTUCKY Even within this broken system, there remains a critical opportunity to defend immigrants from this second sentence of deportation by fulfilling constitutionally mandated safeguards in the criminal justice system. In Padilla v. Kentucky, 559 U.S. 356 (2010), the U.S. Supreme Court recognized the particularly severe immigration penalties that can arise from a criminal case, and the need to take those consequences into consideration. Jose Padilla, a green card holder for more than 40 years, had served as a member of the U.S. Armed Forces during the Vietnam War. On the advice of his counsel, Padilla pleaded guilty to the transportation of a large amount of marijuana in his tractor-trailer in the state of Kentucky. In this postconviction proceeding, Padilla claimed that his counsel failed to advise him of the immigration consequences of his plea and told him that he did not have to worry about immigration status since he had been in the country so long. (Id. at 359.) In fact, Padilla s plea made his deportation virtually mandatory. Observing the dramatic changes over the last 90 years in the landscape of federal immigration law, the Court stated: While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration 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... is now virtually inevitable for a vast number of noncitizens convicted of crimes. (Id. at 360.) On that basis, the Court found that accurate legal advice for noncitizens accused of crimes has never been more important and that deportation is an integral part indeed, sometimes the most important part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. (Id. at 364 (footnote omitted).) Ultimately, the Court in Padilla held that the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea. Absent such advice, there may be a claim of ineffective assistance of counsel. Additionally, Padilla highlighted the benefit of the prosecution considering immigration consequences, stating that informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties. (Id. at 373.) Most recently, California was the first state in the nation to codify the Padilla decision and similar California appellate court decisions into state law. (Cal. Penal Code ,.3 (AB 1343).) The law went into effect on January 1, 2016, and recognizes the irreparable damage to California immigrants and families as a result of the immigration consequences of a criminal case. The law requires that defense counsel provide accurate and affirmative advice about the immigration consequences of a proposed disposition and defend against those consequences. It also places a duty on prosecutors in furtherance of legislative findings and declarations to consider the avoidance of immigration consequences in the plea negotiation process in order to reach a just resolution. While the legislation mostly restates CRIMINAL JUSTICE n Summer

3 what is already in law by court decisions, many defense offices across California are stepping up to meet their Padilla obligation, while prosecutors are now recognizing that they have to change their own policies and practices to consider the immigration consequences of criminal charges. PADILLA IN ACTION: IMPLEMENTING AND FUNDING PROTOCOLS IN DEFENDER OFFICES Even with a constitutional mandate and positive laws providing for effective assistance of counsel for immigrants, the challenge remains as to how to implement and fund protocols within criminal defense practice to ensure that immigration consequences are properly considered in criminal cases and, where possible, to effectuate positive immigration case outcomes for noncitizen clients. Unfortunately, without special assistance it is difficult for criminal defense counsel to know how to defend against or even advise their clients of these consequences. The intersection between immigration and criminal law is complex and fast changing, and a case solution may be counterintuitive and technical. The number of experts at this intersection, while growing, also remains relatively small compared to the need. This is all compounded by chronically underfunded and understaffed public defender offices, which have so many competing interests that they are hard-pressed to allocate attorney time and money to provide the required expertise regarding immigration consequences. There are, however, varying models already established in states and localities across the country to fulfill the Padilla mandate that can help guide offices just developing or looking to expand their work in this area. There are protocol guides that describe in greater detail defense office models and practices to implement Padilla and discuss the pros and cons of the different models. The Immigrant Legal Resource Center authored a California guide in 2015 entitled Protocols for Ensuring Effective Defense of Noncitizen Defendants in California ( tinyurl.com/hssdzha), and the Immigrant Defense Project and the New York State Defenders Association in New York created the Protocol for the Development of a Public Defender ANGIE JUNCK is a supervising attorney at the Immigrant Legal Resource Center, an ABA Immigration Commissioner, and the cochair of the Immigration Committee of the ABA s Criminal Justice Section. The Immigrant Legal Resource Center is a founding member of the Defending Immigrants Partnership, the only national collaborative dedicated to ensuring effective assistance of counsel for noncitizen defendants. NADINE K. WETTSTEIN is an assistant public defender with the Maryland Office of the Public Defender and the ABA Immigration Commission liaison to the ABA Criminal Justice Section. WENDY S. WAYNE is the director of the Immigration Impact Unit for the Committee for Public Counsel Services of the Public Defender Agency of Massachusetts and an ABA Immigration Commissioner. Immigration Service Plan ( Holistic models of representation. Public defender offices in New York City were the first in the nation to provide holistic models for defending immigrants in the criminal justice system. The Bronx Defenders is one such example. Their office is a national model for holistic defense with a client-centered approach to representation and advocacy that addresses both the criminal and civil issues facing their clients. They have a fullservice in-house immigration project with immigration attorney staff who co-counsel on criminal cases involving immigrant defendants to advise them of the immigration consequences of their cases. They represent the same defendants in deportation proceedings or other immigration matters. Finally, they engage in system reform efforts to address government abuses at the intersection of criminal and immigration law. Other defense offices in New York City including the Brooklyn Defender Services, Legal Aid Society of New York, Neighborhood Defender Service of Harlem, and Queens Law Associates have similar models. The robust development of in-house immigration programs in New York City is due in no small part to city funding allocated to this effort. Specifically, in 2010, New York City broke new ground by becoming the first city in the country to rigorously provide resources to public defender offices, so that every office in New York City was able to secure one or more immigration experts to advise their colleagues about immigration consequences. This was followed in 2013 with funding for a related project called the New York Immigrant Family Unity Project (NYIFUP), the first government-funded public defender service for detained immigrants facing deportation in the country. Under the program, immigrant detainees in deportation proceedings in the New York City Immigration Court are provided court-appointed attorneys from the Bronx Defenders, Brooklyn Defender Services, and Legal Aid Society of New York. These offices were provided $4.9 million to represent these individuals in immigration court, some of whom were formerly their own office s clients. New York continues to allocate funding at an unprecedented rate compared to any other state or locality in the country to provide effective representation of immigrants who are or have been previously involved in the criminal justice system. In 2015, the New York State Office of Indigent Legal Services (ILS) awarded $8.1 million to counties across the state to ensure that all courtappointed attorneys in criminal and family court have access to expert immigration advice. The three-year grants have established the nation s first government-funded statewide network of immigration assistance centers and are located in New York City and the counties of Erie/Rochester, Oneida, Albany, Westchester, and Suffolk/Nassau. These six centers are training public defenders and other assigned counsel and providing free immigration consultations in criminal trial-level, criminal appellate, and family court cases. Immigrant Defense Project, a nonprofit and national leader and expert in the immigration consequences of crime, which pioneered this work in New York State almost 20 years ago, was selected by the New York City Mayor s Office of Criminal Justice to develop and operate the Padilla Support Center for New York City, and will also train and support many of the other centers. The centers are expected to play a critical role in ensuring that immigrant New Yorkers receive accurate 26 CRIMINAL JUSTICE n Summer 2016

4 advice about the immigration consequences of their cases and mitigate those consequences when possible. In 2014, Alameda County Public Defender s Office based in Oakland, California, was the first office on the West Coast to replicate the holistic immigrant defense model in order to ensure an attorney on the immigration side defends the hard bargains struck with the District Attorney s Office on the criminal side. Prior to adopting this model, the Alameda County Public Defender had a contract attorney provide Padilla immigration advisals one day a week. After Alameda started the holistic model, the San Francisco Public Defender s Office established a similar program. Both offices provide full advisals on the immigration consequences of criminal pleas to defense attorneys in their offices and provide select representation to some of their clients in deportation proceedings. Because Alameda County has only one and a half staff and San Francisco has only one staff dedicated to these programs, they are not able to provide the same volume of services as New York City defense offices to their immigrant clients. However, they have served as important models in California, encouraging other public defender offices to step up their efforts to meet the Padilla mandate. Both counties fund their positions through their existing county budget that is, the immigration attorneys fall under the regular public defender allocations. In-house immigration Padilla experts. More prevalent across the country are states and counties that have designated inhouse specialists that provide Padilla immigration advisals, but not immigration legal representation. This model allows offices to have a more cost-efficient model, while still covering their offices duty to fulfill the Padilla mandate. Maryland, Massachusetts, and Washington have immigration units within the state defender office or state defender associations, whose role it is to provide support to public defenders across the state. The Massachusetts statewide public defender agency (Committee for Public Counsel Services) provides representation to all indigent individuals for whom there is a right to counsel in state courts (i.e., criminal, juvenile, family, mental health cases). The agency hired its first part-time immigration specialist in 2000 to begin providing immigration advice to its criminal defense attorneys. In 2008, it added another immigration specialist and today has an Immigration Impact Unit with three attorneys who provide assistance to approximately 500 staff public defenders and 2,500 court-appointed private attorneys. The immigration unit provides analysis and advice on individual cases, training programs, written guides, and practice advisories, and participates in state and federal impact appellate litigation involving the immigration consequences of criminal conduct. Funding is allocated from the agency s budget, which is passed each year by the state legislature. Funding began before Padilla due to the realization that criminal defendants were facing severe immigration consequences about which they needed to be advised prior to resolving their criminal cases, and such funding increased due both to Padilla and to the increasing focus of enforcement on noncitizens involved in the criminal justice system. Maryland s program began in 2011, with a fellowship funded by a local foundation to provide immigration advisals to public defenders in Baltimore City. The program expanded in 2012 when the Maryland Office of the Public Defender placed a full-time immigration lawyer in what otherwise would have been a line public defender position. In addition to providing full immigration consequences advisals to the state s almost 600 public defenders and their clients, the immigration attorney helps to fashion pleas and advocates for creative results that protect the client and his or her family and community. The Maryland attorney also conducts immigration trainings in the office s 12 districts, and provides written immigration advisories for defenders and self-help information for clients who likely will be unrepresented in immigration proceedings. The attorney also founded and organizes the Regional Crim-Imm Collaborative (Maryland, District of Columbia, and Virginia). The collaborative includes criminal law and immigration law defenders who meet every two months to learn about case law developments in the federal and administrative courts and share strategy. The success of the Maryland program and the work of the collaborative encouraged both the District of Columbia Public Defender Services and the Virginia Indigent Defense Commission to each hire a full-time attorney to provide immigration advisals for defenders in their jurisdictions. Various county public defender offices across the country also allocate time of an existing public defender on staff to provide advisals to clients on the immigration consequences. These staff may officially spend 100 percent on immigration issues or have a lesser percentage of their time allocated to these issues. In some places, a dedicated defender who cares about immigration issues volunteers his or her time to help colleagues while maintaining a full criminal caseload or other office responsibilities. Los Angeles County Public Defender s Office, the largest public defender s office in the nation with over 700 attorneys and 39 offices, for example, has a well-established in-house program with a long-standing commitment and dedicated resources to addressing immigration issues. They have had an immigration point person, who also serves as an attorney in their research and appellate unit, for more than a decade. She now dedicates 100 percent of her time to immigration matters; this is an expansion from previous time allocation of percent of her time. With more than 20 years of criminal defense under her belt, this expert slowly built her experience in immigration law and spends her time conducting immigration research and consultations with trial attorneys. A significant amount of time is also dedicated to keeping attorneys updated on immigration law, by providing inhouse trainings and sharing advisories and coordinating with the immigrant legal community. Her office was recently approved for a second immigration position by the County Board of Supervisors. This position is dedicated to postconviction relief that is, assisting current and former clients in qualifying for immigration benefits and relief, focusing on eligibility for the President s Executive Action program. Immigration contracts. A final model, employed in many counties including several counties in California, the Midwest, and other parts of the country, involves contracting with an outside immigration specialist such as a private immigration attorney or a nonprofit with expertise in the immigration consequences of crimes to provide immigration consultations. This model may be one of the most cost efficient for offices and allows them to retain experts who are immersed in immigration law and procedure. In Sacramento County, California, for CONTINUED ON PAGE 37 CRIMINAL JUSTICE n Summer

5 have led to innocent blood spilled. Wrongful convictions dot our bibles, history books, and, lately, podcasts and television series. It is a story we know, love, and despise. At the heart of every exoneration sit two persons: the innocent and the advocate. For Susanna, that advocate was Daniel. For Teutberga, Pope Nicholas the Great. For Debra, and most exonerees in the United States, it is a defense attorney. Defense attorneys may lack the divine backing enjoyed by prophets and popes. But in the modern age, innocence projects have led to more and more exonerations. Yet our greatest impact is preconviction, not posttales of daily zealous advocacy are rarely told they lack the drama of Susanna s, Teutberga s, and Debra s stories. But zealous advocacy has prevented countless injustices throughout history. Susanna was convicted without investigation or crossexamination. Teutberga without counsel. Debra without full discovery. What difference could a just system and a zealous defender have made in their cases? n Mandate of Padilla CONTINUED FROM PAGE 27 example, the County Public Defender contracts with the Immigrant Legal Resource Center (ILRC), a nonprofit and national leader and expert in the immigration consequences of crimes. Under this particular contract, public defenders are required to contact the ILRC when they have a case involving an immigrant to understand the immigration consequences of the charges at hand and what to do to defend their client against such charges. Defenders are trained as to what information to provide when submitting a request for assistance. Immigration requests are treated the same as other experts needed in a case and are always automatically approved. The money to pay for the contract with ILRC is through a county budget line item dedicated to expert fees. As long as the expenditure does not go over a certain amount, the Public Defender is not required to seek approval from the County Board of Supervisors to allocate funds to immigration advisals. CONCLUSION With changing demographics across the country and the increasing interplay between immigration and criminal laws, public defender offices must adapt to adequately serve immigrant clients. This means acknowledging, prioritizing, and investing in immigration expertise as they do with other experts required to assist with other aspects of criminal cases, such as defending against DNA evidence or other scientific evidence, in order to ensure effective assistance of counsel. The first step requires that defense leaders and managers become aware of the problem that is, the complexities of immigration law and the devastating consequences that immigrants face as a result of criminal convictions. Only with this awareness can defense offices recognize the full extent of the need and invest in the necessary expertise to help defense counsel meet their Padilla duties. Once defense offices recognize the need, they often face the additional roadblock of funding to ensure full Padilla implementation. Public defender agencies that are struggling with insufficient budgets may not consider providing immigration expertise to be a priority when dealing with low salaries and unrealistically large caseloads. However, failing to provide immigration advice to noncitizen clients is ineffective assistance of counsel, comparable to failing to investigate an alibi or failing to defend against the introduction of faulty scientific evidence. Criminal defense attorneys have always had to keep abreast of advances in criminal law and develop new skills that were previously unnecessary. For example, the proliferation of scientific evidence in criminal prosecutions, and the defenses against such evidence, requires defense attorneys to understand scientific principles to a depth unfathomable 20 years ago. Yet failing to do so, when representing a client in a prosecution based on scientific evidence, would clearly be unacceptable. Understanding the immigration consequences facing noncitizen clients is no different. Various strategies can be employed to provide attorneys with immigration expertise required by Padilla, while taking into consideration funding constraints. The first strategy entails using existing staff time, by starting with a deputy who has an interest in immigration, budgeting time into his or her schedule to develop an expertise, and slowly expanding the percentage of his or her time dedicated to immigration matters. Or, consider if you can use resources that are earmarked for other experts. Finally, consider employing outside resources, including county or city funding. In making a case to local funding entities, defense offices should emphasize that providing correct advice before plea or trial saves time, money, and judicial resources by avoiding protracted postconviction proceedings and reprosecutions when convictions are overturned due to ineffective assistance of counsel. No matter where a defense office begins, it is incumbent upon defense attorneys to take steps to comply with the Sixth Amendment and Padilla. Not only is this constitutionally required, in many cases it will be the critical difference between clients being deported or remaining with their families and communities in the United States. n CRIMINAL JUSTICE n Summer