Gideon’s Promise Not Extended to Nation’s Immigrants

By Paulino Duran

Fifty years ago on March 18, the U.S. Supreme Court held in Gideon v. Wainwright that every person deserves to have a qualified defense attorney, regardless of ability to pay. At that time, Clarence Earl Gideon, a drifter in Florida who was too poor to afford a lawyer, was denied representation at trial, convicted, and sentenced to five years in prison.

For today’s Gideons, the need for equal protection under the law is greater than ever — particularly for the millions of immigrants who come to our country seeking opportunity and fairness. Had Gideon been an immigrant in today’s criminal justice system, he would not only have been imprisoned for his crime, but would likely suffer the additional penalty of detention by federal immigration authorities and then deportation.

The Gideon ruling embodies one of America’s most cherished ideals – equal application of constitutional rights for all. Sadly, the criminal justice system has been undermined and often usurped for federal civil immigration enforcement efforts. More people were deported last year than any other year in our nation’s history, with an increase in the deportation of individuals who have already done their time.

For those who think that Gideon’s promise does not extend to immigrants, they need only look to a more recent, though less recognized Supreme Court ruling – Padilla v. Kentucky. Jose Padilla, a lawful permanent resident for over 40 years and U.S. military veteran, was told by his defense counsel that he would not be deported as a result of his case. Tragically, that was not true. Mr. Padilla faced mandatory immigration detention and deportation under federal laws without the opportunity for a judge to weigh other factors, such as his length of time in the U.S. or his military service. Because deportation is often an integral part of the penalty that may be imposed on them, the Supreme Court ruled that Mr. Padilla and other immigrant defendants deserve quality counsel to fully understand the stakes of their case and their options.

Both Gideon and Padilla are landmark cases that protect the constitutional right to counsel. However, just as the system struggles to fulfill the promise of Gideon, so too it struggles to fulfill Padilla. The reality is that Supreme Court decisions don’t come to fruition simply by virtue of the ruling. There is an underlying political context that determines the extent to which these constitutional principles stand for individuals in courtrooms across America.

One of these political contexts is the looming prospect of federal immigration reform, which will undoubtedly affect individuals who our office represents in the system everyday. In the last few years we have seen more immigrants funneled into the criminal justice system as a result of the federal government’s increased collaboration with local law enforcement officials. Yet, Congress’ and the Administration’s messages around who will be eligible to legalize their status always points to those individuals with a clear record.

Despite the fact that our office has long practiced equal and effective representation for all individuals regardless of legal status, these ongoing changes in immigration laws and policies continue to frustrate defense lawyers’ ability to effectively defend our clients. Every day, our office advises our clients of the immigration-related consequences of their pleas; but because of the fast-changing legal landscape it is impossible to know whether advice to our clients today could be completely overwritten by what Congress writes into an immigration reform law tomorrow.

In a system where 97 percent of criminal cases are resolved by plea bargain, our clients are likely to plead to some crime. Everyday we speculate as to whether we negotiated a deal that may allow our clients to be eligible to legalize their status under a future immigration reform, or if such a plea would close that door to them in the future.

When it comes to immigration, shifting political sentiments hamstring public defenders from fulfilling the promise of Padilla and the spirit of Gideon. Comprehensive immigration reform is currently underway in Congress. On behalf of public defenders across the country, I urge our elected officials to provide clear, fair guidelines for a path to citizenship for the undocumented immigrants in our country. We need laws that take into account immigrants’ individual circumstances and give them a shot at a second chance despite past mistakes.

Paulino Duran is a Sacramento County Public Defender, Executive Committee Member of the American Council of Chief Defenders of the National Legal Aid & Defender Association, and an Advisory Member to the Defending Immigrants Partnership.

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March 21, 2013  Copyright © 2012 Eastern Group Publications, Inc.

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