Counseling Criminal Clients on Immigration: A Tall Order

In 2010, the Supreme Court decided Padilla v. Kentucky. Padilla, a long-time legal permanent resident of the United States and a Vietnam veteran, was caught with drugs in Kentucky. His lawyer advised him to take a plea deal and told him not to worry about the immigration consequences of the conviction because “he’s been in the country for so long.” Lo and behold, the conviction triggered immigration consequences and Padilla was subject to mandatory deportation.

In a surprising departure from its usual approach to the ineffective assistance of counsel doctrine, the Court found that the defense attorney provided advice that fell beneath the minimum professional requirements and also prejudiced the client, thus failing the test from Strickland v. Washington. Justice Stevens’ opinion explains that immigration consequences of criminal conviction (“collateral” consequences) are often much more serious than the punishment meted out by the criminal justice system. In his words:

We have long recognized that deportation is a particularly severe “penalty”; but it is not, in a strict sense, a criminal sanction. Although removal proceedings are civil in nature. . . deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century. . . And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it “most difficult” to divorce the penalty from the conviction in the deportation context. . . . Moreover, we are quite confident that noncitizen defendants facing a risk of deportation for a particular offense find it even more difficult.  

Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strickland applies to Padilla’s claim.

All of which is true: deportation is, indeed, a life-altering penalty, and clients must absolutely take it into account when crafting their trial strategy. But where does this leave defense attorneys, who have had to learn an entire new field of law, rife with hypertechnical distinctions, arcane definitions, and jurisdictional messiness?

For the uninitiated, I’ll just say that the terms used by the INA and other immigration legislation do not mean what defense attorneys would be justified in thinking they mean. A “conviction” under the INA is not necessarily a conviction under state law. An “aggravated felony” under the INA need not be aggravated, nor a felony. “Drug crimes”, “domestic violence”, “firearm”, mean very different things in the immigration context than they do under state law. And don’t even get me started on crimes of moral turpitude, the meaning of which is so vague and fluid that immigration courts still refer to a legal dictionary from 1914. Unconvinced? How about a Jamaican citizen and legal permanent US resident busted for having 1.3 oz of marijuana facing deportation and having to take his case all the way to the Supreme Court to clarify whether this counts as an “aggravated felony”? Nor weird enough for you? Then why should it take a certiorary to the Supreme Court to save from deportation a mathematics professor–Green Card holder from Tunisia–caught with a sock containing four orange pills, who got nailed under Kansas law not for the pills, but for possession of the sock?

The point I’m trying to make is not that U.S. immigration law is nuts (that should be obvious), but rather that, in 2010, expecting garden variety defense attorneys to master all this, complete with all the contradictions and differences, was a tall order. Many people in the civil rights community (me included) hailed Padilla for finally drawing attention to the horror that collateral consequences can bring onto a person’s life. But what if Padilla completely backfired, and what we’ve created is an invitation to confusion at best and malpractice at worst?

Consider this: None of the criminal procedure bail-to-jail courses I am familiar with, including mine (this is going to change as of the next time I teach it), includes a crimmigration unit. Not all law schools even offer a crimmigration class, and of course if they do it’s not mandatory. The bar doesn’t test on immigration and certainly not on crimmigration. I did an informal poll among my former students who practice as defense attorneys. Those who work at public defender offices are lucky in that good, conscientious outfits have prioritized hiring immigration experts (this does not dispense with the Padilla requirement, because presumably the ethical responsibility is still the public defender’s, but at least it offers the clients correct advice.) Those who work as private attorneys, or in smaller outfits such as alternate public defender offices in rural places, are left completely in the lurch. They rely on charts and lists such as this one, or they’ll refer the clients to immigration attorneys, but that means that people who are already in dire financial straits incur even more costs. At least one person admitted to me that they pass on cases with immigration consequences because they fear ethical violations and don’t want to do a bad job, and while this reluctance is understandable, one wonders where that leaves clients with immigration issues (who are already among the weakest, most disenfranchised folks in the system) collectively. More commonly (and also disturbing)–my former students admitted their immense discomfort when counseling people not to take good deals, or to go to trial with a very flimsy chance of success, or to take ridiculous deals that are immigration workarounds. They were (understandably) confused about whether advising their client about the least of all evils–taking a suboptimal criminal justice strategy to save them immigrationwise–was ethically clean, even when realistically sound. They also expressed frustration when dealing with ill-informed (at best) or callous (at worst) prosecutors who chide them for asking for something “special” or “preferable” for a client in risk of deportation.

In other words: This is not good.

I have a few thoughts about this. The first is that a solid empirical study of Padilla‘s impact on criminal practice is absolutely essential. This would require a survey of a large group of defense attorneys about how Padilla altered their criminal practice, as well as in-depth interviews with examples. This stuff will have to be triangulated with what we know about criminal representation, to check whether the additional burdens on defense attorneys have resulted in worse access to justice for noncitizen defendants.

The second is that all of us who teach criminal procedure in law schools–I’m going to start this and my chartacourse electronic casebook is available for you to use–have got to revise our curriculum to include a basic crimmigration unit. I’m thinking something between 6-8 hours covering the categorical approach, aggravated felonies, crimes of moral turpitude, some more specific removal categories, and basic situations in which one’s client might interface with the immigration system. In addition, of course, specialty crimmigraiton courses must be offered in every law school that purports to certify ethical defense attorneys for practice. The bar exam, for all its imperfections, can add immigration law to the list of covered subjects, and this would be relatively easy to do in the MBE because it’s federal law.

This is not a perfect solution, given that immigration law changes frequently and is subject to administrative whims (even when not dealing with someone as unhinged as the current occupant of the White House). Because of that, my third thought is that, in offering and taking CLEs, priority must be given to crimmigration updates. If and when we establish a defense bar, crimmigration proficiency has to be prioritized.

Same deal, by the way, for prosecutors: Larry Krasner’s initiative in forming an immigration unit at the D.A.’s office is an essential tool for any prosecutorial outfit that purports to give people what they deserve, rather than indirectly bring about grossly disproportionate punishment. Immigration is not an externality: it is part and parcel of the person’s fate, and has to be treated as such by the D.A.’s office.

If you are a defense attorney and have encountered immigration issues in your criminal practice, I would love to hear from you in the comments.

More Progressive Punitivism: And Today We, the Woke, Will Tell You How to Grieve Your Brother

If you’re anything like me, you might have spared a moment or two from focusing on the impeachment brouhaha to follow the horrific tragedy involving Amber Guyger, the white woman who shot her African American neighbor, Botham Jean, arguing that she mistook his flat for her own. And if you’re anything like me, you were probably surprised, and perhaps moved, to read about Jean’s brother, Brandt, who after Guyger’s conviction and sentence hugged her and expressed forgiveness.

And if you’ve spent any time online in the last day or two, you’ve seen that everyone whose brother was not murdered recently had Opinions about this. As NPR explained, it “sparked a debate.”
I’m in a rush to get a little bit more work done, so I’ll keep this short: There has been a lot of chatter from well-meaning, righteous folks, using all the correct Woke argot, about things we’ve already read in op-eds a thousand times: how forgiveness and restorative justice just give white people a reprieve because they reinforce racial hierarchies and excuse structural inequality yada yada yada. This sort of chatter, right here, is what I argue in both Yesterday’s Monsters and in Progressive Punitivism has been the ultimate paradigm in American criminal justice policy. It doesn’t matter if you’re a fierce punitive right winger or a fierce punitive progressive social justice crusader–you’ve spent decades marinating in a national animus that tells you that everything that is wrong in the world is criminal justice related and that harsh punishment is the only solution. 
It is important to listen to victims. Very. It is important to have all the compassion in the world for victims. And at the same time, first and foremost, our obligation to victims is to help them not be just “victims” as soon as possible. What we are doing with the reification of this punitive perspective is reinforcing the notion that the only appropriate way to deal with social ills is to punish; that to forgive is weak and subservient; and that people should never move on from their own victimization–even if it’s healing TO THEM, even if it helps THEM, even if it is THEIR way of dealing with grief.

Which means that we’re all about listening to victims–but only if they sing the punitive tune we like to hear.

I would humbly suggest to all the self appointed social justice critics of Jean’s big heart that perhaps there isn’t only One Right Way to handle the murder of your sibling, and that perhaps the decent thing to do is to let people grieve and process in whatever way seems appropriate to them. 
I would also suggest that critiquing someone’s admittedly uncommon way of handling his grief as if he doesn’t know what he’s doing is as paternalistic as the hierarchies the commentators supposedly condemn. 

“What About Arab-on-Arab Crime?” Minority Intraracial Violence and How the Left and the Right Both Get It Wrong

As I type this, thousands of Israeli Arab citizens, residents of Magd-al-Crum (an Arab town in the Upper Galilee) are protesting against the Israeli government’s failure to appropriately address violence in Israeli Arab society. Ha’aretz reports:

The day before yesterday two brothers were fatally shot at the town in a browl, and today another young man who was badly injured in the fight, Muhammad Saba, died of his injuries. The protesters are calling out derogatory calls about the police and its crime-fighting abilities, including, “Ardan [the police minister], you’re a coward”, and bearing signs saying, “violence–not in our streets” and “living in peace is already a dream.” Muhammad Baraka, the Chairman of the Supervision Committee for the Arab Population, said at the end of the march that, “if in Magd-al-Crum and [other] Arab towns there won’t be peace–there won’t be peace anywhere. It is not a threat, it is an elementary right for any citizen in a proper society. 

Since the beginning of the year, more than 70 Arab Israeli citizens were murdered throughout the country. Among the marchers were thousands of villagers, as well as citizens from all over the country, mayors, Knesset members and religious leaders. Prominent at the rally were women, who wore black shirts for mourning, called out slogans and marched with their children who carried signs against violence. Even the family members of the two brothers who were murdered in the village, Halil and Ahmed Man’aa, attended the protest.

Homicide victims per 100,000, by religion, 2014-2016 (non-
Jews in red).

The protesters in Magd-al-Crum are not taking a single incident out of proportion–they are responding to a devastating statistical reality. According to a new report from the Knesset’s Center for Research and Information, Israeli Arab citizens are disproportionately represented among homicide victims. Because homicide (like most violent crime) is primarily committed intraracially (this is true in the U.S. as well as in Israel), what this means is that homicide perpetrators are also primarily Arab Israelis.

התפלגות הנאשמים בעבירות רצח לפי דת בין השנים 2014-2016 (מערכת וואלה! NEWS , -)
Homicide defendants by religion, 2014-2016 (non-Jews in red).

The graphs from the report prove the point. Arab Israelis, who constitute about 20% of the Israeli population, are responsible for more than 50% of homicide offenses per annum. This is not the fabricated, misleading product of overenforcement or targeting by Israeli police (many other things are, and we’ll get to it in a moment): it reflects actual bodies on the ground–dead people and the people who shoot them.

Just recently, after the Joint List of Arab parties won a record number of seats in the Knesset. After this electoral triumph, the party leader Ayman Odeh published a wonderful editorial in the New York Times–a testament to his very real qualities of leadership. Many commentators reflected on his blend of idealism and pragmatism and on his willingness to support Gantz as Prime Minister (against Netanyahu) but reluctance to join the government. But as a criminologist, I was more drawn to his important and knowledgeable commentary on the problems that really plague the Israeli Arab population:

Our demands for a shared, more equal future are clear: We seek resources to address violent crime plaguing Arab cities and towns, housing and planning laws that afford people in Arab municipalities the same rights as their Jewish neighbors and greater access for people in Arab municipalities to hospitals. We demand raising pensions for all in Israel so that our elders can live with dignity, and creating and funding a plan to prevent violence against women. 

We seek the legal incorporation of unrecognized — mostly Palestinian Arab — villages and towns that don’t have access to electricity or water. And we insist on resuming direct negotiations between Israelis and Palestinians to reach a peace treaty that ends the occupation and establishes an independent Palestinian state on the basis of the 1967 borders. We call for repealing the nation-state law that declared me, my family and one-fifth of the population to be second-class citizens. It is because over the decades candidates for prime minister have refused to support an agenda for equality that no Arab or Arab-Jewish party has recommended a prime minister since 1992.

What might these resources include? I worry that the facile right-wing and left-wing solutions to Arab-Israeli violence are equally doomed to fail. Let’s start with the left wing. About a year ago I sat in a hotel lobby at the ASC annual meeting and talked to a respected and experienced Israeli criminologist, who told me of his Israeli colleagues’ reluctance to openly discuss Arab crime rates. It’s bad form among left-wing intellectuals to admit that a population that suffers (truly) from overpolicing, overcriminalization, and harsh sentencing, might also be responsible for actual crime on the ground.

This, of course, reminded me of James Forman’s Locking Up Our Own. One of the great strengths of the book is that, by contrast to Michelle Alexander and others to whom racial discrimination seemd to be wholly a product of racist policing, racial profiling, and the war on drugs (note that even Michelle Alexander eventually came around to rejecting this facile explanation, albeit without admitting her own errors), Forman’s protagonists, black politicians and police chiefs, sought what they thought in good faith to be the best for their communities. Why would Burtell Jefferson embrace stop and frisk? Why would black politicians embrace marijuana enforcement and lax gun laws? Because they were attentive to a community that was really–not just in the putrid minds of white supremacists–ravaged with violence. Perpetrated against black people by black people.

What is often lost in the chatter of those who deem the question “what about black-on-black crime?” racist is the deep understanding that the vast majority of the African American population does NOT commit crime, and that these politicians and cops were operating on behalf of their communities, rather than against them. It could even be argued that this oversight, in itself, is a form of racism. But I see this evasion, the fudging of this truth, everywhere. As a shining example of this, take a look at the NAP commission report on the causes of mass incarceration and how it talks about race and violent crimes:

Note: the relative involvement of blacks in these crimes has “declined significantly”. But what about the graph right below this paragraph, which gives you the plain statistics? In the 2000s, when these rates have decreased, black perpetrators are responsible for “only” 50% of the homicides. African Americans constitute about 12% of the population. So, they are overrepresented in the homicide perpetrator population by a factor of four times their percentage in society. Note how my colleagues conveniently avoid mentioning this simple fact, which is literally staring them in the face. Do the numbers for the other violent crimes: also, considerable overrepresentation. And keep in mind that, by contrast to drug offenses (for which we know the official statistics represent differential enforcement, as we know that using and dealing statistics are more or less equal for blacks and whites), for violent crimes official statistics are a far better representation of actual crime commission rates. 
Why are my American colleagues not talking about this? For the same reason that my Israeli colleagues don’t openly talk about Arab-Israeli crime rates. Because to admit the statistical truth that these groups are overrepresented in the violent crime picture is tantamount to appearing as a racist to your colleagues and friends. Many lefties, both in the academic and in the activist milieus, think that talking about crime rates is tantamount to repeating the racist sayings of the Nixon and Reagan eras about “hoodlums” or “superpredators” or to subscribe to some kind of Lombrosian thinking that “this is how these people are.” Nothing could be farther from the truth. There is not a shred of evidence, from the natural OR social sciences, that shows that any racial group is predetermined to commit more crime. 
The answer is much more simple. It’s become fashionable among some of my colleagues (I see this a lot in the books that came out in the last few years) to criticize liberals and democrats for their contributions to “building prison America” and for their paternalistic assumptions about inner-city black life and the black family. But the bottom line is that, study after study of these supposedly paternalistic, well-meaning white criminologists, has shown that criminality and criminalization basically come from the same place: systematic racism. The same forces that lead entire police departments to structure their stop-and-frisk practices to target African American drivers and pedestrians also account for the poverty, neglect, and lack of legitimate opportunities that produce real violent crime. When people have been oppressed, neglected, dehumanized, relegated to second-class-citizen status for generations, is it any wonder that, in the absence of legitimate opportunities they turn to nonlegitimate ones? And what would be racist or paternalistic about admitting this?
Which is where we come to the other side of the political map. What Forman convincingly argues in Locking Up Our Own is that, faced with the real problems of their community, the policymakers and actors he examined grabbed the only tool available to them: criminal justice and law enforcement. Our recurrence to criminal justice comes, argues Forman, from a lack of imagination: we only have a criminal justice hammer in hand, and therefore everything looks like a nail. Law-and-order types, the likes of which are easy to find in both the Israeli and American governments, are likely to jump on the opportunity to police Arab society (or African-American urban streets, which our caselaw tellingly refers to as “high-crime areas”) more aggressively. The outcome of these methods can only be destructive–as it has been, to the detriment to all of us, in the United States. 
The truth is that Arab villages and American inner cities do not suffer exclusively from overenforcement or from underenforcement: they suffer from a poisonous, unhealthy combination of the worst of both. Politicized law enforcement, infused with racist stereotypes, will resort to doing less real policing (actually investigating and effectively preventing serious, violent crime) and more harassment and humiliation of people in the streets over minutia. The outcome is that everyone suffers–today you are the repeated victim of humiliating stop-and-frisk and demeaning encounters with a police officer, and tomorrow you’re at risk of being the innocent victim of a stray bullet. 
Similar things are true for Arab towns and villages. For decades, Arab cities and towns have been shamefully neglected compared with their Jewish counterparts. People don’t have basic infrastructure–I’m talking electricity and water services. Arab schools are in shambles in terms of the infrastructure. Workplace and education discrimination are rampant and ugly. With this package of systemic discrimination comes both underenforcement (Arab lives are seen as less worthwhile and thus less efforts are expended to protect them) and overenforcement (every one of my Arab friends can tell you stories of police abuse that will make you shudder.) Is it any wonder that both crime AND criminalization are serious problems, at the same time? And is it a huge theoretical overreach that both come from the same poisoned well of systemic discrimination? How is throwing more police officers to do more humiliating things going to help the crime rates? How can we ever achieve real change with just law enforcement and no real investment in the enormous socioeconomic gaps that birth crime and discrimination in the first place?
Ayman Odeh strikes me as an extremely thoughtful, visionary leader. I hope he can leverage these qualities to deeply comprehend the conflation of two deep truths: that violent crime in Arab society is a real problem, and that more aggressive law enforcement is a terrible solution. And I hope that some of us, in academia and in policymaking, can come to the same conclusions about American crime and law enforcement. 

Which Juveniles May Be Tried As Adults? CA Supreme Court to Decide

A legislative clash regarding the prosecution of juveniles in adult courts has reached the California Supreme Court. Bob Egelko of the Chron reports:

At issue is whether youths under 16 must be tried in juvenile court, where the maximum sentence is until age 25, or can be sent to adult court and face lengthy prison sentences, including life terms for murder. 

A 2000 ballot measure allowed California prosecutors on their own to charge 14-year-olds as adults for serious crimes. Proposition 57, a state constitutional amendment passed by the voters in November 2016, required prosecutors to request such transfers from a juvenile court judge, who would consider the youth’s history and potential for rehabilitation and the nature of the charges before deciding whether to send the case to adult court. 

The new law, SB1391, passed by the Legislature last year and in effect since January, prohibits adult court prosecution for anyone younger than 16. Prosecutors have challenged the law, arguing that it conflicts with Prop. 57, but four appellate courts had upheld the law before Monday.

To put things in context: Both SB1391 and Prop. 57 aimed to do the same thing – scale back the ridiculous appetite for prosecuting juveniles in adult courts. To put things into perspective, this is a backlash against the “direct filing” policy enacted in 2000, under which the decision to prosecute a juvenile as an adult lay exclusively with prosecutors. Keep in mind that this was five years before the Supreme Court decided Roper v. Simmons, in which they relied on neuroscience and developmental psychology to “rediscover” what we forgot throughout the 1980s and 1990s: children are different than adults, and the prefrontal cortex, which allows for delayed gratification, consideration of consequences, and empathy, continues to grow and develop well into a person’s twenties. As we are reeling from the characterization of children as “superpredators” or “sociopaths”, especially in the racialized context of the crackdown on crack, we are trying to fix things.

The problem is that these two laudable propositions are trying to do things that could be interpreted as at odds with each other. Under Prop 57, the discretion in trying juveniles as adults shifted from prosecutors to judges; under SB1391, juveniles under 16 cannot be tried in adult courts at all. Prosecutors, who are losing ground under both propositions, argue that SB1391 prevents them from presenting the case of, say, a 15-year-old boy at a hearing to determine where to try him.

My hope is that the Supreme Court will rule that these propositions are not actually at odds with each other. SB1391 sets a firm limit of 16 for adult courts; within this firm limit, juveniles–people aged 16 and 17–go through a hearing to determine whether they should be tried as adults. In that sense there is no contradiction. If the Court does find a contradiction, I hope they will resolve it in a similar fashion.

Distress Call: Suicide Rates in California Prisons

A couple of years ago, Michael Bien alerted us at his keynote speech at WSC to an alarming trend: mental illness was on the rise in CA prisons even as they were getting decrowded. He and his lawyers ran the numbers lots of possible ways, and couldn’t find a comprehensive explanation.

And now, we have some distressing data about the suicide rates in CA prisons. The Chron reports:

Last year, an average of three California inmates killed themselves each month in state cells — 34 total suicides in a system with 129,000 inmates. That amounts to an annual rate of 26.3 deaths per 100,000 people, the highest rate in California since at least 2006. 

That figure is higher than the national average for state prisons (20 per 100,000 in 2014) and federal prisons (14.7 in 2018, according to the Washington Post). From 2001 to 2014, according to the Bureau of Justice Statistics, twice as many people killed themselves in California cells than in the entire federal system, which contains more prisons and inmates. There were 448 total suicides in California prisons during that period and 222 in federal prisons. 

The inmate suicide rate has now increased for four straight years in California, and it may rise again in 2019. According to the state, 16 inmates committed suicide during the first six months of this year. Michael Bien, an attorney who represents mentally ill prisoners, said he knows of 10 more inmate suicides since then, for a total of 26 so far in 2019. A state spokeswoman said she couldn’t confirm the 10 recent deaths because “some investigations are still ongoing.”

Read the article in its entirety: it exposes a disturbing pattern of neglect and cover-your-asses mentality and the futility of the ongoing Coleman litigation. What is wrong? and how can we fix it?

The Impeachment of Andrew Johnson

Engraving of Andrew Johnson Impeachment trial
Theodore R. Davis’ illustration of Andrew Johnson’s impeachment trial in the Senate, published in Harper’s Weekly.

Much has been made in the last couple of days of Nixon and Clinton comparisons to, ahem, the current brouhaha. But as I was prepping this slideshow for a virtual talk at Manny’s, I was struck by the surprising similarities between our, ahem, situation, and the context of Andrew Jackson’s impeachment in 1868. A quick read of this lucid and helpful Wikipedia article will bring you up to speed. It’s a rather obscure chapter in American history; as early as 1896, Edmund Ross commented that “little is now known to the public” about it. After Ross’s book, three more books were written about the impeachment trial: David Miller DeWitt’s in 1903, Michael Les Benedict’s in 1999, and David Stewart’s in 2010. What is palpable in all of them (perhaps most so in Stewart’s book) is the context: a bitter, partisan, no-holds-barred fight between Lincoln’s successor, a moderate Southern Republican seeking reconciliation with the South, and Congress, which sought more sanctions against Southern States during Reconstruction.

Johnson’s unbridled anger at Congress will remind you of someone we know: He actively campaigned against Congress, which included a massive speaking tour to “fight traitors in the North.” This campaign backfired spectacularly when the election yielded two Republican houses determined to thwart his agenda, and when he tried to get rid of Edwin Stanton, the Secretary of War he inherited from Lincoln and a staunch Unionist. Congress tried to thwart these efforts by passing the Tenure of Office Act, and Johnson, determined to get rid of Stanton, did so nonetheless. Nine of the eleven articles of impeachment revolved around this effort.

Through the prism of 2019, I can’t help but read this story as that of a small man with no hope of filling the giant shoes of his predecessor, conciliatory and sympathetic to a grim racist heritage, determined to spite anyone placing limitations on his power to appoint and discard people as he chose. It might cheer you up (or not) to learn that the Senate came one vote short of removing him from office. It might also be useful to keep in mind that the failure to secure the additional vote came from four Republicans voting against their own party out of concerns that the evidence presented against Jackson was one-sided–and a good reminder that, in order to garner legitimacy for the impeachment process, it is important to conduct a thorough and objective investigation that might assuage the concerns that some of today’s hesitant Republicans about “witch hunts” and “kangaroo courts.” If Democrats want to secure removal in the senate, which for obvious reasons will be an uphill battle, the process has to be fair and also to be perceived as fair.

Hunger Strike in Calaveras County Jail

Jail
Calaveras County Jail, courtesy
The Calaveras Enterprise.
Chapter 6 of Cheap on Crime dealt with a transition with our perception of inmates–from wards of the state, who need to be clothed and fed and taken care of for the duration of their sentence, to capitalist consumers, whose every need beyond the very bare minimum (and sometimes even the bare minimum!) is monetized. The consumer label, of course, is ironic

Well, the shit finally hit the fan at Calaveras County Jail, where inmates are fed up with the endless monetization of their lives. The Calaveras Enterprise reports:

Seventeen inmates at the Calaveras County Jail have announced their plan to initiate a hunger strike in protest of “outrageous prices” for telephone calls and commissary items including soup and ramen noodles.

“Not only are we afflicted, but our families as well,” the inmates wrote in a letter to the Enterprise. “We have made attempts at every other level to have this situation resolved, to no avail. We are hoping that the public can get involved and know the real situation that is going on here.”

According to the inmates, local calls cost $2.91 for the first minute and 41 cents for each additional minute, while long-distance calls cost only 21 cents per minute. A soup from the jail’s canteen currently costs $1.23. They claim that those prices are far higher than those at other California facilities in which some of them have been detained.

Nineteen-year-old inmate Marc Holocker told the Enterprise on Monday that prices have gone up at the jail since he was incarcerated in May, and that his weekly allowance of $20 provided by his family is no longer sufficient to meet his needs. Outside of the telephone calls to his lawyer, which are free of charge, Holocker no longer calls family members, he said, opting instead to spend his money on food items.

Just recently I posted about how the prison food industry is one small, often unnoticed “piecemeal privatization” that escapes the gaze of the anti-private-prison crowd. The awfulness and meagerness of prison food (nutraloaf anyone?) feeds (no pun intended) directly into the commissary business. The phone call gauging is an ongoing scandal, in CA and elsewhere (and that’s before we even ask hard questions about the calls’ privacy). In Cheap on Crime I bitterly commented that people in prisons and jails who review their institutions on Yelp have drawn the natural conclusions about how they’re being treated, and it seems the people striking in Calaveras are taking to more direct action.

Crimmigration Meets Sentencing: Assimilating the Apprendi Doctrine to Simplify the Categorical Analysis

As part of my visitorship at Harvard, I’m having the great pleasure of auditing Philip Torrey‘s terrific Crimmigation class and learning a lot about this relatively new, but hugely important, legal field. After Padilla v. Kentucky, knowing the immigration consequences of criminal convictions are not just “nice to know”–they are an ethical obligation for criminal attorneys, and our shameful immigration policy means that many, many criminal cases will have immigration consequences.

Because removal from the U.S. is one of the most severely destructive things you can do to a person’s life–far more destructive than the domestic sentences for many offenses–it is imperative that these consequences be foreseeable. Indeed, when you read caselaw written about crimmigration the judges will often say “this is obvious”, but it is not obvious at all. The categories are nebulous and complex, the overlap between federal and state law is far from complete, and on the receiving end of this are people who have to figure out their criminal case strategy with an eye toward the immigration consequences. So, simplifying the analysis is overall a good thing.

In this post I’m presenting one idea/suggestion on a possible simplification of crimmigration, which in the grand tradition of the field, requires importing an idea from the criminal to the immigration realm–namely, planting the Apprendi analysis regarding the definition of an “element” of the offense to the categorical analysis done in immigration removal cases. Let’s explain.

When a person is removable from the United States on criminal grounds–whether as “inadmissible” (having not been legally admitted into the country) or “deportable” (having initially arrived here legally)–the law governing the removal can be found in sections 212 and 237 of the INA. These sections enumerate the sorts of criminal consequences that trigger removal. In general–and this is hugely simplified–“inadmissible” noncitizens can be removed following a conviction for a “crime of moral turpitude”, a controlled substances offense or two or more convictions of some seriousness, or for being known as a controlled substance trafficker or a trafficker in persons or engaging in prostitution or other commercialized vice. “Deportable” noncitizens can be removed following a conviction for a recent crime of moral turpitude (or a combination of older crimes of moral turpitude), an “aggravated felony” (which need not be aggravated nor a felony), high-speed flight from an immigration checkpoint, failure to register as a sex offender, or an offense involving controlled substances, firearms, or domestic violence (more detail on all this in my colleague Richard Boswell’s excellent book.)

The challenge in applying these categories lies in that the federal definition of these offenses, as well as of the concept of “conviction”, can differ from the state definition where the person was tried and convicted. Setting aside the issue of “conviction”, which in itself is complicated, how can we tell whether a state conviction for a violation of a particular state statute is the equivalent of a conviction for an “offense involving controlled substances” as per immigration law?

To resolve this question, immigration courts recur to the “categorical approach”: the analysis focuses on the content of the relevant statutes (the state criminal statute and the federal immigration statute) rather than on the facts that gave rise to the incident. Basically, the court will analyze the offense from the immigration statute, analyze the elements of the criminal statute, and if the former is narrower or equal to the latter (at its least culpable version), the person is deportable on criminal grounds. This kind of analysis is reminiscent of the analysis of several criminal procedure and sentencing doctrines, starting with the application of the ACCA (Descamps, despite having nothing to do with immigration, is regarded as precedent for immigration cases) and continuing with the Blockburger test for “same offense” in the double jeopardy context.

But wait! Things get complicated, because state statutes are seldom straightforward. They often include several alternative actions, circumstances, or mental states. When faced with such complexity, immigration judges have to figure out whether it is a “divisible” or an “indivisible” statute. A “divisible” statute is a statute that includes several alternative elements, in which the jury has to find positively, beyond a reasonable doubt, that a particular subset of these alternatives (as opposed to the other alternatives) occurred. If that’s the case, the “modified categorical approach” allows the court to go beyond the face of the statute and look at actual documents from the case–say, the indictment, the plea colloquy, the jury instructions–to figure out which version of the divisible statute the person was convicted of. Then, the court proceeds with the categorical analysis with respect to that particular subdivision. By contrast, some statute will enumerate alternative features, but those don’t rise to the level of “elements”–they are merely “means”, which is to say, a criminal jury is not required to specify which of these they found occurred in the case. If so, the regular categorical analysis stands and the court won’t be permitted to go beyond the language of the statute.

Corollary: It is very important, for immigration law purposes, to know whether the alternative wording in the statute constitute “elements” or “means”.

For an example of this analysis, look at the Ninth Circuit decision in Rendon v. Holder (2014). The case involved the California burglary statute, which prohibits entry with intent to commit “grand or petit larceny or any felony.” Because not any felony is larceny, there’s a possible argument that this is a divisible statute; but the Ninth Circuit analogized this case to Descamps, which deals with the exact same statute in the ACCA context, to say that it is not a divisible statute. The reason? A California jury deliberating a burglary case would not be required to unanimously decide between “larceny” versus “any felony,” or to unanimously agree as to the “felony.”

How do we know this? One tell-tale sign would be if the burglary statute affixed different sentences to people entering to commit “larceny” and people entering to commit some other felony. That would be an indication that these elements have to be found by a jury. But this is not the case here, so the courts in Descamps and Rendon have to go into the statute and into jury instructions etc.

The thing is, we don’t actually need the middle man. In 2000, SCOTUS decided Apprendi v. New Jersey, which is not an immigration case but a sentencing case. The story was as followed: Apprendi fired several shots into the home of an African-American family and made a statement–which he later retracted–that he did not want the family in his neighborhood because of their race. He was charged under New Jersey law with second-degree possession of a firearm for an unlawful purpose, which carries a prison term of 5 to 10 years. But New Jersey also had a hate crime statute, which was not mentioned in Apprendi’s charge, and which doubles the sentence of a crime if a trial judge finds, by a preponderance of the evidence, that the defendant committed the crime with a hate motive. Apprendi pleaded guilty, the prosecutor filed a motion to enhance the sentence, and the judge found by a preponderance of the evidence that the shooting was racially motivated. As a consequence, Apprendi got 12 years – 2 more than the maximum sentence for the basic firearms conviction. On appeal, Apprendi argued that the hate motive should have been mentioned in the charging document and proven to a jury beyond a reasonable doubt–in other words, according to the classification that was valid at the time, that the “hate motive”, despite appearing in a separate statute, was an “element of the offense” and not merely a “sentencing enhancement.” Writing for the majority of the Court, Justice Scalia found that the distinction between an “element” and an “enhancement” was unclear and unnecessary, and that the 6th Amendment, as well as the principle of legality, required a jury decision beyond a reasonable doubt regarding “any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction.”

Apprendi yielded a whole series of cases dealing with the question of what counts as an “increase in penalty”, but that’s not of concern here: what I argue is that the same test can be used in the immigration context, and it renders unnecessary the whole distinction between “elements” and “means.” If the ruling in Apprendi is adopted in the immigration context, immigration judges looking at a complex statute need only ask about a particular part of the statute: does this part impact what sentence the person’s going to get? If so, the statute is divisible, and this fact is the subdivision we have to apply the modified categorical approach to. If not, the statute is indivisible, and we don’t have to worry about this part and we apply the straightforward categorical approach.

Why is this a good suggestion? Well, for one thing, it makes things simpler. This in itself is a virtue in immigration, and the reason why the categorical approach was adopted to begin with: clear administrative decisionmaking and uniformity. This is especially important, because while the logic behind not getting into the facts was supposedly to make things easier, it hasn’t, and courts bumbling through doctrinal analysis don’t necessarily do a better job than courts bumbling through case facts. If there’s something we can do to simplify the doctrinal analysis, we’re actually helping.

In addition, adopting Apprendi in immigration removal cases the trend of adopting criminal law logic in immigration contexts, and would do something to correct the imbalance in the interface between the two areas of law. It would also harmonize the tendency to prefer these kind of clean, element-based analysis with other areas of criminal law, such as double jeopardy. 

Finally, this is not a bleeding-heart-open-borders suggestion: presumably, if you are the “you do the crime, you do the time, you leave the country” type, without fair warning as to what the “crime” consists of, you don’t have much of a moral basis for your retributive stance.

I’d love to hear your thoughts.

We Have Lost Joan Petersilia

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… and by “we”, I don’t mean academics, activists, abolitionists, rehabilitation people, professional do-gooders. I also don’t mean prison guards, bureaucrats, politicians, paper pushers. And I don’t even mean prisoners and their families.

I mean all of us.

Joan was one of those rare academics who managed to find common language with everyone involved in corrections without compromising her ideals. I had read her scholarship before meeting her in person in the early 2000s, when she gave a talk at Berkeley about how she convinced then-CDC officials to add the “R” for rehabilitation to CDCR’s mission. I was young and naive and thought she was compromising to even sit at the table with them. I didn’t quite understand that the way to get things done is to forge coalitions, and the compromise and incrementalism are necessary. It’s a wisdom that comes with age and experience, but Joan seemed to be precocious at implementing its lessons throughout her career.

Joan knew California prisons inside and out. Her early work in 1978 was an interview-based examination of criminal careers, in the fine tradition of Shaw and McKay–15 years before “life-course criminology” was even on the horizon. She studied racial disparities in criminal justice when David Baldus’ study was fresh off the presses and broadened his work in a systematic, quantitative way far beyond the death penalty. She collaborated with people of all political stripes, including J.Q. Wilson. She knew that being kind, generous, and collaborative with politicians and administrators meant access to the things we crucially needed to know about our prisons, and that actually researching and exposing truth was more important than empty posturing about integrity. Many of us in the field would do well to follow her example.

Much of her later work was devoted to issues of reentry, rehabilitation, and parole. She conducted excellent quantitative studies on probation and parole release. She was a pioneer in thinking about the fact that most people in prison eventually return to their communities and thinking about what would work best to address their needs. Joan collaborated with colleagues and students to offer a series of sensible recommendations that would make parole so much better by depoliticizing it and making it about hope and support, rather than about emotion and hysteria.

And at the same time she was producing an astounding volume of high-quality scholarship, Joan encouraged and mentored everyone around her, including her students. She was unfailingly kind and generous. She followed Yesterday’s Monsters since its inception with good advice (I believe she’s the first name listed in the acknowledgments) and inspired much of its inquiry. A few weeks ago I sent her an email inviting her to write a blurb for the back cover. She wrote back right away:

This book sounds incredibly exciting and path breaking. I’m afraid I have to decline providing a blurb, as my health is just not up to it. I’m back on chemo and it really affects my brain. What they say about this is really true! I have a very hard time reading and remembering what I have read, or composing anything literate. The doctors say this will pass and my prognosis is good, but it is what it is for now and I have no way to gauge how long this will last but likely for more than a year. I hope you understand, as I am sorry about this and would have done it in a minute under normal circumstances. I can’t wait to read your book and hope it’s a bestseller! You can count on me to buy one of the first copies available!

That Joan was so sick and yet took the time to write me such a kind email is emblematic of her unfailing kindness and generosity. She was such a class act. Little did we know that things were going to turn around and we were going to lose such an important and precious colleague and friend. Joan, the first signed copy of the book is in the mail on its way to heaven. What is remembered, lives, and by that measure, your goodness and wisdom is immortal.

Progressive Punitivism in the Animal Protection Movement

Juno the Dog
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Juno, the dog from Oregon v. Newcomb. Image
courtesy BarkPost.
A while ago, I read and commented on Oregon v. Newcomb, a Fourth Amendment case involving animal cruelty charges. The case was very interesting both from an animal rights perspective and from a search-and-seizure perspective: A cop was called to a woman’s house following complaints of abuse and neglect of her dog. Upon arriving, the cop found the dog emaciated, seized him, and took him to the police vet. The vet took a blood test, found out there was nothing wrong with the dog except he was being starved, and charges were filed against the woman. She filed a motion to suppress the blood test results, arguing that it was a warrantless search of her property.
The Oregon Supreme Court wrote a wonderful opinion from an animal rights perspective: Even though the Fourth Amendment protects people’s “effects” from unreasonable search and seizure, some “effects” differ from others in that they are sentient. From a Fourth Amendment perspective the decision was more nebulous; it is unclear whether the court meant that the blood test was not a “search”, or a permissible search due to exigent circumstances because of Juno’s condition.
But there was one thing that caught my eye as I was reading the decision, and I highlighted it in my review:

It’s not difficult to read between the lines in Newcomb, even though the Court doesn’t really do that. Newcomb said to the police officer that she fed the dog WinCo food bought in small packages. WinCo is a low-grade kibble that sells in bulk at Costco, chock-full of grains, chemicals, and artificial fillers. It’s telling that the defendant did not buy the kibble in bulk, but rather in small packages: poor people can’t afford to spend on bulk and reap the savings, which is true for every product. As Yesim Orhun and Mike Palazzolo found in a study based on Nielsen data, frugality is hard to afford.

Hastings is located in San Francisco’s Tenderloin neighborhood, which is a window into the lives of people ravaged by extreme poverty. We frequently see folks who live in the streets with pets, which almost always seem groomed, well-fed, and very much loved. But since homeless people’s lives, by their very nature, are exposed to the eyes of strangers, the ability to detect animal welfare and neglect is heightened, to the point that the police might intervene more frequently than when it gets reports of neglect in houses. Obviously, Newcomb was not homeless. But the reason she provided for the dog’s emaciated condition is very telling, and might also explain the police’s zealousness in following up on the complaint.

Don’t get me wrong: I think the court’s decision is 100% correct. The rights of an animal that is mistreated should trump the “ownership” rights of whoever owns him or her, regardless of social class. But I think it does raise questions as to whether we enforce these laws equitably, and whether we should develop means to report and expose animal abuse and neglect in other settings.

Happily, my colleague Justin Marceau from Denver University has addressed this issue much more thoroughly in his excellent new book Beyond Cages. Marceau’s main argument is that, amidst the diverse and varying opinions and philosophies underpinning human enthusiasm for protecting nonhuman animals, the movement, such as it is, tends to coalesce around the lowest common denominator: crying out for harsher and harsher punishments for animal cruelty. And, just so that we understand, this rarely manifests in thorough investigations against corporate giants propagating animal cruelty, such as Smithfield Foods or Sunrise Farms (suppliers of the so-called ‘humane meat/eggs’ to Whole Foods and Amazon): much more common is taking out our collective ire at individuals, because, as both Marceau and Sherry Colb argue, this allows us to keep engaging in everyday complicity in cruelty to animals (via consuming animal products, visiting zoos and circuses, wearing leather, etc.,) while pretending that cruelty to animals is an aberration, a personal pathology of deranged, psychopathic individuals who abuse and neglect the animal we most care about as a society: our beloved, anthropomorphized pets (for a fascinating critique of pet ownership, see Jessica Pierce’s fantastic and thoughtful book.)

One of my students wrote a marvelous seminar paper last spring about touch deprivation in the lives of the homeless and, among her other arguments, she highlighted how we dehumanize homeless people while purporting to care for the welfare of their pets. I’m not 100% on board with her (well made) arguments, because I don’t see the animals raison d’être as providing companionship to people, but I loved that she problematized the criminalization of poverty through arguments of animal cruelty.

As an animal rights person, I am so glad people are making this point, because I think this recurrence to punitivism weakens, rather than strengthens, the animal rights movement; but it seems that Marceau sees this as an aberration of the animal rights movement compared to other civil rights movements. Marceau writes:

The animal protection movement – on an organizational and individual level – regard the fight to secure protections for animals as a civil rights issue. Analogies to women’s rights, LGBTQ legal victories, and even the abolition of slavery and the fight against racism are common tropes. But is the movement seriously interested in civil rights and broad social change? Incarceration is a most unlikely ally for a movement that might earnestly desire far-reaching social reform. Never has a social change or civil rights cause been so thoroughly immersed in the coercive, prosecutorial arm of the State. Indeed, the animal protection movement’s commitment to ever harsher criminal punishments and more aggressive enforcement of the criminal law may serve as a case study for understanding how other movements should conceive of their relationship with the carceral state.

Unfortunately, if other movements have not managed to co-opt the “coercive, prosecutorial arm of the State” for social justice ends, it’s not for lack of trying. As I explain here, here, here, here, and here (coming soon to a database near you via Vol. 68 of the Buffalo Law Review), a considerable thrust of the social justice struggle’s energy has been devoted to shaming, discrediting, obliterating, calling for prosecution and incarceration of, and taking away due process protections from the people these movements dislike. The latest example (for shame!) is the absurd and obscene persecution of Judge Persky; the scorched-earth mentality knows no bounds and has followed him off the bench as well. If anything, the animal rights movement is an example of what happens when this animus, which enjoys considerable success in destroying and ruining people’s lives via the cyber-guillotine of social media, is coupled with state cooperation.

Indeed, that we see this phenomenon operating in distinct and separate activist spaces such as the animal rights movements and, say, #metoo, is proof of what I argue in my Progressive Punitivism piece: that this is not some isolated pathology of the left, but rather part of the collective disease we all suffer from–across the entire political spectrum–as a consequence of marinating in the carceral state logic for the last fifty years. When we’ve been consistently taught, since Nixon (and perhaps even before), that all problems are criminal justice problems, and that all of them can and should be solved by locking people up, is it really any surprise that we see this logic operating in entirely different spheres of the social activism world?

Precisely because the animal rights movement regularly makes comparisons to other social justice causes (which I, for one, see as perfectly apt and insulting only if one views them through a speciest lens), it should lead the way in seeking to liberate, not to incarcerate. The true meaning of intersectionality lies in finding common ground and uniting struggles, not in hairsplitting the left apart. If this movement wants to expend energy in the direction of the criminal process, it must do so by providing strong support to open rescuers arguing for a necessity defense; for people who are facing the carceral state, not propping it up.