As noted above, since the enactment of tougher more discriminating immigration laws in 1996, thousands of criminal defendants convicted of both felonies and misdemeanors, whom are also noncitizens of the United States, have become aware of the serious adverse immigration consequences resulting from entering into plea bargains, unaware that by electing to enter into a plea bargain with the prosecution in their cases they may have, unaware of the resulting consequences, bargained away their right to remain in the United States.
We wish to make clear here what should not be subject to dispute. If one asks the question about crime and punishment, we think most Americans will agree that any person who commits a crime anywhere should be made to pay the consequences that will be imposed by the criminal laws of the jurisdiction in which the crime was committed. The dispute however is with respect to noncitizens that are convicted of such offenses in the United States and which arise in circumstances when the noncitizen enters into a plea negotiation with the prosecution completely unaware of the collateral consequences from entering into such pleas.
More specifically, when a noncitizen is not aware that in addition to the state criminal penalties for the commission and conviction of the a criminal offense, the noncitizen defendant also forfeits her human right to continue to live in the United States with his spouse and children, when she agrees to plea guilty to the criminal charge in complete ignorance of what is about to happen to her when the federal immigration authorities arrest her for having been convicted of that offense.
To illustrate this concept better, assume for example that the state laws of the State of New York punish the commission of a theft offense for an amount under $400 as a misdemeanor offense, and that it imposes among other consequences a period of incarceration say—of 180 days in county jail, most Americans will agree that the defendant (regardless of citizenship) should be ordered incarcerated for the period of 180 days as required by the punishment of the New York's state criminal law.
What this article is referring to however is about an additional punishment to a noncitizen defendant for the commission and conviction of the same offense, which nearly always is significantly more severe than the incarceration punishment imposed for the criminal offense itself, that is— deportation from the United States—of the noncitizen defendant.
Noncitizens and immigration advocates throughout the United States are not really complaining that noncitizens that commit serious offenses should not be deported, specially so when the immigration laws expressly require that such noncitizens be deported from the United States for having committed such offense. Rather, they argue that a noncitizen should be informed in advance by the state criminal courts and by her private attorney or public defender that if the noncitizen—enters into a plea agreement with the prosecution to plea guilty or no lo contendere to certain specific offenses—the noncitizen will be deported as a collateral consequence of the conviction at the conclusion of the sentence that is being imposed for that particular criminal offense.
In other words we think that state laws should make certain that criminal defense lawyers and the criminal courts make this fact of such serious consequence be known by the noncitizen defendant before she agrees to enter into that plea agreement. Make actual knowledge of that fact a prerequisite component of a plea bargain so as to properly inform in advance the noncitizen at the time when the noncitizen is considering to enter into the plea bargain—before she commits to the plea agreement. Requiring that this information be given to the noncitizen in advance prevents the unfairness of confronting the deportation consequences after the fact— i.e., days or months after the noncitizen agrees to enter and enters into the plea bargain.
What is a plea bargain?
A plea bargain or agreement is generally negotiated between the representatives of the prosecution (the government’s attorney) and the noncitizen’s attorney. Its purpose is designed for one party to give up something in exchange or in return for obtaining from the opposing party something the party wants.
An example of what is a plea bargain starts after the defendant is arrested and charged by the police with say—one count of driving under the influence of alcohol on a highway, and one count of driving while in excess of the maximum allowable alcohol blood count (a separate offense) as prohibited by the state law. Or, if you prefer, one count of driving under the influence of a controlled substance and one count of possession of marijuana (they typically go together).
During the prosecution hearings, the government’s attorney (the prosecutor) realizes that in order to obtain a judgment of conviction from the criminal court against the defendant, absent the defendant’s admission that he/she was in fact driving under the influence of alcohol on the time in question, and/or that he/she possessed marijuana, the prosecution will be required to spend considerable time—several months in the average— and considerable resources in prosecuting the case—laboratory tests, expert witnesses, and most important attorney time in preparing for the trial, which in the average may take from several days to weeks in advance and then, the actual time that it takes during the trial.
The prosecution also considers the expenses in manpower and time and effort it will have to incur if the defendant forces the prosecution to prove the charges before a jury trial in the criminal court. Most significant, the prosecution also needs to consider the risks inherently involved in any jury trial—i.e., the possibility that it may just not be successful in obtaining the judgment against the defendant for the crime charged.
Likewise, the defendant considers all of its own risks and expenses in defending in a jury trial, and the possibility that after spending plenty of money and much resources in her defense she may still end up with a conviction against her if the defense strategies will not stand up to the evidence against her in her case.
“Plea bargains” consists of offers (and negotiations) by one party in exchange for demands from the other. Each attorney representing one of the parties, will approach the opposing party’s attorney to make a proposed settlement offer, say— the prosecution will dismiss the one count of possession of marijuana upon condition that the defendant enters a plea of guilty to driving under the influence of a controlled substance, and spends 180 days in county jail.
Now consider the following facts. First, there should be no doubt that nearly all prosecutorial offices throughout the United States are significantly backlogged with hundreds of cases requiring prosecution, which means that the prosecutors from those offices are overworked. And the same goes for the public defenders offices in the same jurisdictions handling the same number of criminal defendants as well as the courts and judges presiding over those cases. Therefore, plea bargains are pushed through in every case by the criminal justice system as every component of the same system benefits from avoiding to have criminal trials on every case that is filed by the prosecution in every jurisdiction in America. When you think of it carefully, everyone in the system seems to benefit to some degree from a plea bargain.
Now also consider another reality. In any given day, a public defender will be assigned a series of criminal defense cases to handle for that day. It should not be alarming to anyone that a public defender who is assigned various cases in a particular day, will likely be more drawn to spend more time in defending the accused with a more serious offense (a felony) charged against that criminal defendant than she would on defending an accused in a minor (misdemeanor) offense. This is not intended to disparage a public defender's commitment to justice and fairness or her devotion to her clients. No. It is simply a brief look into reality. The public defender will be very mindful of the likelihood exposure to the period of incarceration that her client faces in felony charges compared to that of most misdemeanor offenses, which carry typically a small fine, probation and the majority of times no period of incarceration. It is likely then that the public defender will not be thinking about the collateral consequences to her client if she is a noncitizen of the United States because it is not part of her job. Hence, if the public defender is able to negotiate a plea bargain that will allow her to go home immediately and will be required to pay fines and be placed on probation for a certain period, she will likely convince her client to enter into the plea. After all, why would she not think it is a great deal?
If the defendant agrees to accept the offer by the prosecution, or if the defendant counter offers to the prosecution for a different disposition as a plea negotiation, upon reaching an agreement the parties will enter into a “plea bargain”, which then requires the approval by the criminal judge—whom also has to consider its own backlog of mounting cases and jury trials that are pending, which the judge needs to preside over. To the criminal court judge however, justice is dispensed when the defendant accepts to plea rather than forcing a jury trial. At the same time the court reduces the amount of cases that are pending before it. Upon approval by the criminal judge of the plea agreement, you now have a plea bargain.
But these plea bargains do not generally involve matters that are outside of the criminal justice system. Meaning, the immigration consequence of deportation resulting from certain criminal convictions are not part of the typical plea negotiations, and do not form part of the bargain because the court system is concerned only with the prosecution of crimes not the deportation of noncitizens.
Thus, while every part of the criminal justice system benefits to some degree from plea bargains, as the prosecution gets a conviction, the defendant receives less of a punishment and the criminal court judge avoids having to try the case before a jury, if the noncitizen defendant is unaware that deportation is a consequence of the guilty plea, then, it can be said that plea bargains may be very dangerous to noncitizens. It can hardly be called “a plea bargain” to a noncitizen if she never bargained for the possibility of being deported as a result of the plea agreement.
We believe that most Americans will agree with the premise that informing the unsuspected noncitizen in advance that entering into a plea bargain agreement should incorporate an advisory that deportation is a possibility after entering into the plea bargain—it is just the fair thing to do!
Unfortunately for unsuspecting noncitizens, they find out about the deportation consequences after the fact. Often, these immigrants have to rush to the criminal courts where they were convicted in order to plea for "mercy" after the fact. And some noncitizen defendants would have entered into the plea bargain even if they knew that they would likely be deported after serving their criminal convictions. The majority of them however, whom have formed families and have developed strong ties to the United States would not agree to such plea bargain.
Noncitizens with strong ties to the United States would likely never have agreed to enter into a negotiated plea if they had clear knowledge that they would be deported from the United States directly as a result of that plea agreement. Examples of these cases are abundant, some of them, include noncitizens suffering minor misdemeanor convictions which before the new immigration laws were enacted in 1996, did not have the serious consequences they have now.
For example, some noncitizen defendants who agreed to plea guilty for a crime based entirely on the consideration that if they go to trial to defend their criminal charges, they could be found guilty and be sentenced to longer periods of time. Thus, when the negotiated plea bargain or "deal" includes only a few months in jail, as opposed to longer sentences if they lose their case, the noncitizen defendants opt for entering into the negotiated plea.
Once they go to jail to "do" the time of their incarceration sentence like all other defendants, these noncitizen defendants learn that the immigration authorities have placed a "hold" on their release at the termination of their state custody. A "hold" means that after the noncitizen completes his state sentence, the jail authorities inform the federal immigration authorities to come and take custody of the noncitizen.
Often, a noncitizen will be in federal custody much longer than the initial time she agreed to during the criminal proceedings when she entered into the criminal plea bargain. In a great number of those cases, the only way the noncitizen defendant can save herself from an imminent deportation is if she is successful in reopening her criminal proceedings alleging that had she been aware of these immigration consequences she would never have entered into such plea bargain without having considered the possibility of going to trail with her case.
Cognizant of these reasons, many state legislations throughout our nation have enacted laws to warn the noncitizen defendants, their criminal lawyers and the criminal courts that convictions for certain specified offenses may have serious adverse immigration consequences including deportation.
The Supreme Court of the United States recently pointed out that 19 states and the American Bar Association, require criminal defense counsel to inform the defendant of the “potential immigration consequences” of a plea. The Supreme Court stated:
“Many States, including Connecticut, the State in which respondent pled guilty, require that trial judges advise defendants that immigration consequences may result from accepting a plea agreement. See Cal. Penal Code Ann. § 1016.5 (West 1985); Conn. Gen. Stat. § 54-1j (2001); D. C. Code Ann.§16-713 (1997); Fla. Rule Crim. Proc. 3.172(c)(8) (1999); Ga. Code Ann. §17-7-93 (1997); Haw. Rev. Stat. § 802E-2 (1993); Md. Rule 4-242 (2001); Mass. Gen.Laws § 278:29D (1996 Supp.); Minn. Rule Crim. Proc. 15.01 (2000); Mont. Code Ann. § 46-12-210 (1997); N. M. Rule Crim. Form 9-406 (2001); N. Y. Crim. Proc. Law § 220.50(7) (McKinney 2001 Cum. Supp. Pamphlet); N. C. Gen. Stat. § 15A-1022 (1999); Ohio Rev. Code Ann. § 2943.031 (1997); Ore. Rev. Stat. § 135.385 (1997); R. I. Gen. Laws § 12-12-22 (2000); Tex. Code Crim. Proc. Ann., Art. 26.13(a)(4) (Vernon 1989 and Supp. 2001); Wash. Rev. Code § 10.40.200 (1990); Wis. Stat. § 971.08 (1993-1994). And the American Bar Association's Standards for Criminal Justice provide that, if a defendant will face deportation as a result of a conviction, defense counsel "should fully advise the defendant of these consequences." ABA Standards for Criminal Justice, 14-3.2 Comment, 75 (2d ed. 1982)” See, INS v. St. Cyr, 533 U.S. 289, at n.48 (2001).