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.

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.

CA Divests from Private Prisons: Realistic? A Good Thing?

Hailed, and partly for good reasons, as a positive development, the Guardian today announces:

The private prison industry is set to be upended after California lawmakers passed a bill on Wednesday banning the facilities from operating in the state. The move will probably also close down four large immigration detention facilities that can hold up to 4,500 people at a time. 

The legislation is being hailed as a major victory for criminal justice reform because it removes the profit motive from incarceration. It also marks a dramatic departure from California’s past, when private prisons were relied on to reduce crowding in state-run facilities. 

Private prison companies used to view California as one of their fastest-growing markets. As recently as 2016, private prisons locked up approximately 7,000 Californians, about 5% of the state’s total prison population, according to the federal Bureau of Justice Statistics. But in recent years, thousands of inmates have been transferred from private prisons back into state-run facilities. As of June, private prisons held 2,222 of California’s total inmate population.

What does this mean, exactly? Keep in mind that there are no actual private prisons on California soil–and yet, California is one of the private prison industry’s best clients, as it houses thousands of its inmates in Arizona and other states that have a flourishing array of private facilities (mostly owned by CoreCivic, formerly the CCA, and the Geo Group.) The bill, AB 32, changes this relationship by barring the state from contracting with private providers outside the state. This includes, importantly, the use of private prisons for holding undocumented immigrants: “Detention facility” is defined in the bill as “any facility in which persons are incarcerated or otherwise involuntarily confined for purposes of execution of a punitive sentence imposed by a court or detention pending a trial, hearing, or other judicial or administrative proceeding.”

Is it realistic for CA legislature to divest from private prisons? It is, to the extent that “private prison” is, as defined in the bill, “a detention facility that is operated by a private, nongovernmental, for-profit entity, and operating pursuant to a contract or agreement with a governmental entity.” But what about the many functions provided inside so-called governmental prisons in CA through private subcontractors? This interesting magazine article about prison food in Chino depicts what is an atypically good reality; prison food is hard to provide without recurring to private contracting, and is awful whether provided through public or private means. Similarly, the much-maligned CA prison healthcare system, which has been for years in the hands of a federal receiver, extensively contracts with private health care providers. This stuff is not the alternative to a public prison economy: it *is* the economy. How do we make sure that prisoners have beds to sleep on, doctors and nurses to take care of them, and two or three (meager, yucky) meals a day? In the neoliberal capitalist world, there aren’t a lot of options out there. So divesting from private prisons completely is not a particularly realistic premise, nor is it particularly desirable (private providers are not categorically worse for the inmates than public providers, and everyone is motivated by greed, as I explain here.) It does have one important, unqualified positive effect: we are not building new public prisons, and we are not housing people in private prisons anymore, so we should incarcerate less people, period. That in itself will be a success.

But there’s something else I find somewhat fishy here, and that’s the supposed divestment of CA from private detention of immigrants. The picture here is much more complicated, because undocumented immigrants are primarily the responsibility of DHS and ICE, the latter of which incarcerates and prepares people for removal as the federal arm of law enforcement (Richard Boswell explains this separation of powers very well here.) What the feds do is contract with states such as CA to house undocumented immigrants, over whom Congress has plenary power and ICE has enforcement prerogatives. Some CA cities house immigrants in their public jails; others contract with private subcontractor providers to meet ICE’s demand. CA’s complicity with awful federal policies is not so much in the fact that they deal with private contractors; its in the awful conditions in both private and public facilities and in poorly supervising the conditions in these places. To be fair, it’s not all CA’s fault – their inability to supervise more effectively stems largely from the general chaos in immigration detention and from hurdles placed by ICE. But I’m unclear on whether these undocumented minors are worse off in private facilities than they are in post-Plata public jails, which do a notoriously poor job distinguishing between immigrants and “real criminals” (whatever the heck that means.)

In short, before dancing a jig about divestment from the public industry, let’s ask ourselves some hard questions about the market itself and how it incentivizes public and private institutions alike to do a poor job locking people up (including people whose only supposed “crime” is saving themselves and their families from the conditions in Central America.)

Politics and Penality

In addition to being engrossed in my animal rights/criminal justice project, I have the happy and challenging obligation of writing an encyclopedia entry for the Oxford Research Encyclopedia of Criminology and Criminal Justice on “politics and penality.” This is a daunting project because it calls for a preliminary working definition of what current scholarship means by “politics” and what it means by “penality.” Critical writings on punishment and society, especially on the macro level and especially recently, tend to examine punishment within a reality of political priorities, and particularly in the context of power and inequality in their many forms. This calls for a loose, broad definition of “politics”. Moreover, scholarship has come to understand penality as a broad regime, beyond obvious and visible representations of penal power such as criminal courtrooms and prisons.

I’m still thinking about how to conceptualize the project (this post is part of that reflection), but it seems to me like there are at least three trends in recent literature on politics and penality that are particularly interesting:

1. The Separation and Overlap of Politics and Penality and the Importance of Neoliberalism as an Explanatory Factor

As I mentioned, one of the major novelties of the literature is observing and reporting on manifestations of penality outside the prison. In that respect, the work of critical geographers, economists, and public policy scholars has been most instructive. The notion of “million dollar blocks” has brought prison planning and expense out of the prison and into neighborhoods. The work on the impact of incarceration on families expands the circle affected by mass incarceration beyond the prison. The work on the conflation of ghetto and prison shows not only exclusion and confinement operating in and out of the prison, but also the inexorable link between the decline in welfare and the rise in incarceration as economic factors. Work that sees the hand of incarceration in landscape and industry; this “carceral term” is especially linked to the overall rise in importance of neoliberalism in explaining penality. It seems like neoliberalism is now at the heart of any macroanalysis of politics, and penality is no exception: what emerges from the literature is the sense that the tyranny of capitalism, miserly manifestations of shrinking welfare, and in general, the lack of care for the bottom 15% (20%? 50%? 99%?) of the population is what drives penality. This school of thought, which sees penality as the product of a grander political program, manifests itself not only in the context of class, but also race (particularly in North American writings that see punishment as part of a “racial project”). These big picture analyses tend to suggest a grand and sinister plan, in which punishment serves as a tool for a larger political economy scheme (echoing radical Marxist criminology) and has been criticized by some as imposing current notions of neoliberalism and capitalism rather than taking historical or contemporary actors on their own terms. There are also big questions as to the extent to which grand political trends (such as managerialism/actuarial justice) trickle down to actual actors. Neoliberalism also means that, popular progressive calls for abolitionism aside, it’s hard to imagine what abolitionism would actually look like, though some try.

2. The Association of Punitivism with Particular Political Positions

Critical literature of the 1970s through the 1990s that looked at the emergence of mass incarceration in the United States tended to associate classic association with conservatism, and with good reason. The classic bogeymen of this period are Nixon and Reagan–both associated with one of the major bogeymen of mass incarceration, the war on drugs. But more recent literature tends to view Nixon and Reagan not as aberrations, but rather as a continuation of trends that involved pathologization, criminalization, and marginalization, particularly of young black men. This literature ranges from arguments that particular liberal groups unwittingly contributed to disastrous circumstances (including opponents of harsh punishment) to arguments that see liberals as having “built prison America”, including welfare-minded professionals espousing paternalism toward the “pathologies of the black family.” These new writings are not unrelated to agonistic perspectives on criminal justice, which show that, rather than “seismic shifts” to and away from punitivism, criminal justice policy is the product of constant negotiation between political forces and movements.

Most recently, literature has drawn attention to the fact that punitivism is alive and well even within progressive and radical movements. Most of this literature looks at carceral feminism, in the context of human trafficking,  violence against women, and #metoo campaigns (see here and here), as indivisible from the overall neoliberal frame; but some literature links it to other progressive movements’ inconsistent calls to dismantle the carceral state while applying its logic to enemies of the movement (see also here and here).

3. Geopolitical Penality, Penality and Protection, Penality and National Security

New literature sees penality beyond the context of the domestic, as a manifestation of growing nationalism and security trends in a variety of countries around the world. The idea of border criminologies looks at how penality, xenophobia, and national security intersect, as does the relatively new field of crimmigration. As recession-era politics in the global north curbed incarceration, they affected a shift in resources and private investment toward immigration enforcement, the use of criminal logics in the immigration context, and the introduction of criminal technologies in managing immigration. Also important is the penal manifestation of political shifts in postcolonial and developing settings.

Please, let me know if there are other hot topics in politics and penality that you think are relevant!

Cruelty to Migrant Kids Is Not “Cheap on Crime”

The Washington Post reports this absolutely heartbreaking piece of news:

The Trump administration is canceling English classes, recreational programs and legal aid for unaccompanied minors staying in federal migrant shelters nationwide, saying the immigration influx at the southern border has created critical budget pressures. 

The Office of Refugee Resettlement has begun discontinuing the funding stream for activities — including soccer — that have been deemed “not directly necessary for the protection of life and safety, including education services, legal services, and recreation,” said U.S. Health and Human Services spokesman Mark Weber.

Since these days things that used to solidly reside in the “needless to say” category need to be explicitly said, I’ll open with this: This is monstrous, gratuitous cruelty. And what is the justification?

Federal officials have warned Congress that they are facing “a dramatic spike” in unaccompanied minors at the southern border and have asked Congress for $2.9 billion in emergency funding to expand shelters and care. The program could run out of money in late June, and the agency is legally obligated to direct funding to essential services, Weber said.

Last week I spoke on a mini-plenary about dignity and austerity. The other presenters addressed issues such as takings, welfare cuts, neoliberal banking, and the like, in which “savings” are synonymous with, essentially, letting go of caring for the world’s (or the country’s) weakest population. Because in criminal justice things don’t operate quite that way, I’ve had to explain that investing money in people in the context of criminal justice is not necessarily to their benefit, and often works to their detriment. The big exception to this statement, though, is rehabilitative programming: the dark side of the developments I discussed in Cheap on Crime (and on the plenary) is the continued trend to deeply cut rehabilitation programs.

Doing so, especially in the context of juvenile populations, is not a wise, “justice reinvestment move”. Beyond being cruel, it is penny wise and pound foolish. Educated, physically active, nurtured children are far more likely to have a “stake in conformity”, to use Hirschi’s term. Are migrant kids deprived of the opportunity to learn the language most prominently spoken in their new country and, for heaven’s sake, to play soccer, more or less likely to desire to be law-abiding, proud residents?

Contrast this horror with another piece of news: San Francisco sets out to eliminate its Juvenile Hall. Readers of Nell Bernstein’s Burning Down the House, as well as anyone even minimally informed with the realities of juvenile confinement in California, will surely welcome this beneficial development, and look forward to a public health model of handling juvenile transgressions.

No Big Surprises: Deportation Law Triggered by Criminal Convictions Declared Vague

Today, the Supreme Court decided Sessions v. Dimaya, in which the respondent appealed his deportation. It is an interesting decision both legally and politically.

The Immigration and Nationality Act (INA) renders deportable any alien convicted of an “aggravated felony” after entering the United States. The definition of “aggravated felony” includes several enumerated crimes, and also a residual definition of a “crime of violence”, which reads as follows:

“(a) an offense that has as an element the use, attempted use, or threatened use of physical force
against the person or property of another, or
“(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

Dimaya, a documented immigrant from the Philippines, had two convictions for burglary, neither of which involved violence. Nonetheless, immigration authorities found that the convictions satisfied the “aggravated felony” residual clause, and therefore triggered automatic deportation.

Today, SCOTUS struck down the definition as unconstitutionally vague. Justice Kagan, reminding us that the court applies “the most exacting vagueness standard. . . in removal cases”, relied on Johnson v. United States to argue that the law in its current form does not provide sufficient warning about deportation consequences of criminal convictions.

Also important is the fact that Justice Neil Gorsuch, Trump’s appointee to the Supreme Court, voted with the four liberal Justices to vacate the law. While newsworthy, this is hardly a surprise for those familiar with Gorsuch’s record on criminal justice. He has publicly and consistently spoken against the abundance of criminal laws on the books and his position on overcriminalization and vagueness was well known at the time of his appointment.

Moreover, today’s decision relies on Johnson, a pro-defendant decision on a similar issue authored by Justice Scalia, also a conservative who would side with defendants in cases involving overcriminalization and vagueness.

While encouraging and fair, today’s decision is hardly surprising… except, perhaps, at the White House, where consistency of opinion is valued less than dogged personal loyalty.

Book Review: Mona Lynch’s Hard Bargains

Jeff Sessions’ career as Attorney General started exactly with what you would expect from him: a revocation of the Obama Administration’s commitment to end reliance on private prisons for domestic inmates and the promise to ramp up marijuana enforcement. Both of these are examples of this government’s effort to find the most reasonable, fiscally responsible, and decent thing that should be done and then do the exact opposite.

We know that private prisons in the federal system are not big players in the overall incarceration picture. The Obama Administration’s declaration that they would cease to rely on them seemed more a symbolic move than something that would actually make a difference (not that they could intervene in state incarceration matters anyway.) Moreover, throughout that period, private facilities were still used (and are still used) for incarceration of immigrants before deportation, and there was never any talk of stopping that practice.

We also hear the federal government arguing for a dinosaur-era approach to marijuana, featuring a new lie: that marijuana usage is related to opioid overdosing, which is unsupported by research and harkens back to the dark days of the Anslinger war on drugs in the 1920s.

These developments make Mona Lynch‘s new book, Hard Bargains, remarkably timely. In the book, Lynch conducts a careful and perceptive ethnography of three federal district courts: one in the Northeast, one in the Southeast, and one in the Southwest. Lynch is well aware that federal prosecutions are not the driving force behind mass incarceration, but she uses federal drug enforcement as an interesting laboratory for the study of prosecutorial discretion.

Indeed, the main takeaway from the book is the unhealthy combination of two seemingly contradictory factors: the existence of tough sentencing laws, which presumably bind discretion (albeit less so since 2005), and the existence of broad prosecutorial discretion, which allows them full use of these draconian sentencing provisions. On the back cover, Kate Stith, whose excellent book with Jose Cabranes Fear of Judging was a well-informed and passionate cry against sentencing guidelines,  interprets Lynch’s analysis as pointing to lack of discretion. I think the lack of discretion is only half of the problem. With the advent of extreme sentencing laws, how they are deployed is up to individual prosecutorial ideology, and as an outcome, a different culture of federal sentencing develops in the three different districts.

Not that any of these is particularly appetizing. Lynch’s account of the Northeast depicts a court that is captive in the hands of a zealous prosecutor on a mission to “rescue” people from themselves and from the streets, who basically wrangles minor drug cases out of the states’ hands and pushes them into the federal system, sometimes in violation of the Petite policy of refraining from double prosecution. In his enthusiasm to end the drug epidemic, he imposes lengthy and unreasonable restrictions on their freedom, which the court almost invariably approves. In the Southeast, there isn’t even a pretense of rehabilitation: an elderly judge delivers moralizing lectures to defendants on the receiving end of obscene, decades-long sentences for nonviolent drug crimes. And in the Southwest, marijuana backpackers–poor, undocumented immigrants carrying marijuana by foot as payment to their coyotes–are rounded up, summarily shifted to “flip flop court” for misdemeanor charges, where they are made to plead guilty in batches and march off to detention before deportation.

It’s difficult to figure out which of the three models is the most horrible. The variations confirm, though, that when outrageous mandatory minimums, unreasonable calculations of criminal histories, and breathtaking arbitrariness in terms of offense categories, come together, the problem is not, or at least not exclusively, lack of discretion. The problem is that a dazzling array of options, including very frightening and oppressive ones, is on the table, and prosecutors get to pick and choose which of these to deploy.

The extent of prosecutorial power here cannot be underrated. The publication of Hard Bargains coincides with the publication of John Pfaff’s Locked In, which looks at the unfettered discretion and power of county prosecutors (and which I’ll review in a future post). Lynch and Pfaff’s analyses are complementary.

As in her previous book Sunbelt Justice, Lynch is not only a meticulous and perceptive observer but also a master storyteller. The defendants, prosecutors, and judges come to life in her vignettes from court cases she witnessed. Her description of the poor, disenfranchised immigrants forced to plead guilty in batches is particularly disheartening (my students were in tears when I read this section aloud in class yesterday.) Lynch has a keen psychologist’s eye for personalities and motivations, and she realistically captures the ideologies and worldviews that make her characters tick.

It is horrifying to think of how this system, already bloated, draconian, and rotten in the Obama years, could wreak more havoc and destruction in Trumpistan, and the news from the last two days suggest at least two directions in which things could get even worse: reintroducing the profit mechanisms that drove private incarceration by improving these companies’ relationship with the feds, and inflicting the awful drug sentencing scheme on marijuana defendants to an even greater extent (with the obvious potential victims being the people at the bottom of the Trumpistani social ladder: poor immigrants from Mexico.) I dread to think that the horrors and inhumanities described by Lynch could be something we might come to miss in the years to come.

Should San Francisco Rethink Its Sanctuary City Policy? The Price of “Redball’ Cases

Immigration and crime rates in the United States, 1999-2013.
Source: American Immigration Council.

The tragic death of Kathryn Steinle at Pier 14 is senseless, brutal, and, of course, a horrific loss to everyone who knew her. And the confession of the alleged killer, Juan Francisco Lopez-Sanchez, who claims the shooting was done at random (an accident?) make this incomprehensible brutality even more difficult to bear. New discoveries about this horrific tragedy, it seems, appear every day, including the disturbing fact that the gun used in the shooting belonged to a federal agent.

As in the case of other heinous, sensational crimes, the media circus is looking for an “angle”: what is this crime “about?”. And in this case, they have found their angle in the shooter’s immigration status. Lopez-Sanchez was not only a repeat felon (though his previous felonies were not violent) but also an undocumented immigrant, deported several times and returning to the United States, and protected from federal deportation by San Francisco’s sanctuary city policies (which we discussed as they were enacted and debated here, here, and here).

These have become, over the last few days, essential ingredients for a new moral panic against undocumented immigrants, questioning the city’s policy. And it is an easy target for the media: it stands in stark contrast to the trend in other states, notably (but certainly not only) Arizona, to enact anti-immigration laws that enable local law enforcement to assist the federal government with deportation–and sometimes, to do the feds’ job. Some local governments’ persistence in enacting and upholding these laws is particularly astonishing given the enormous costs they entail. In going against this trend, San Francisco is ripe for criticism, and indeed, everyone seems to blame everyone else: Jesse Waters blames the Democrats, the White House blames the Republicans, but what everyone agrees on is that the sanctuary city policy is to blame.

It is understandable that, in the aftermath of a terrible loss, we’re looking for a way to make sense of the tragedy; we did the same just two weeks ago after the horrible mass murder in South Carolina. It is the (understandable) scourge of “red ball crimes” that they attract energy and strong feelings that lead to panic and specialized policy legislations; it is the sad reason why our sex offender laws bear the names of murdered children. But in this case–as is often the case when policies are debated in light of a “red ball crime”–questioning the policy is misguided, because Lopez-Sanchez is the exception, not the rule.

The consensus in the research community has been, for many years, that immigrants commit less crime than the native-born. This has been confirmed time and time again via different methods. As the charts above show, crime rates nationwide have fallen as immigration, including undocumented immigration, was on the rise. While this does not necessarily prove anything, it also does not prove the opposite. But other evidence is stronger: immigrants are less likely than the native-born to be incarcerated, and most convincingly, studies tracking at-risk youth have shown that immigrants actually engage in less criminal behavior than the native-born. Even second-generation immigrants, who commit more crime than first-generation immigrants, commit less crimes than the native-born. The vast majority of deportations of “criminal aliens”, according to official data, are not due to serious crime–most are due to immigration, drugs, and traffic offenses. Only 8.6% of those targeted by ICE detainers have a criminal record that includes a “level 1” criminal offense, and 77.4% have no criminal record whatsoever. Apparently, the misguided public belief that immigrants commit more crime stems from a misguided estimation of their percentage in the population, and it seems to be more prevalent among less educated people who have less cultural affinity with immigrants.

The frenzied, empirically unfounded responses to Steinle’s death obfuscate the real problem: undocumented immigration has been going on for many, many decades, it is an inseparable part of our political geography, and it happens, with U.S. complicity, because we need the Mexican undocumented market. The wish to draw conclusions from a terrible tragedy so that it doesn’t happen again is understandable, but that does not mean we should draw the wrong ones.

CCA-Backed Legislation in Arizona Mowed Down by 4th Circuit

Last brief item of news for today: The Fourth Circuit has determined that police officers in Arizona cannot harass people for immigration papers based solely on their appearance. The Washington Post reports:

On Wednesday, a federal appeals court slapped down Mr. Jenkins and the county sheriff’s department. The appeals court said that law enforcement officers may not go around accosting people merely on the suspicion that they may lack immigration documents, no matter what they look like or how limited their facility with English. As the court pointed out, an individual’s unauthorized presence in the United States is not a crime; it’s a civil violation of immigration law.

The ruling by the U.S. Court of Appeals for the 4th Circuit, in Richmond, is consistent with last year’s Supreme Court ruling on Arizona’s anti-immigrant statute. In that case, the Supreme Court allowed police to determine the immigration status of people they stop or arrest for other reasons. But Justice Anthony Kennedy, writing for the court’s majority, noted it is not a crime for an illegal immigrant to be present in the country. “Detaining individuals solely to verify their immigration status would raise constitutional concerns,” he wrote.

In the case of Ms. Santos, the appeals court pointed out that police who start asking questions based solely on the race or ethnicity of their interlocutor may also run afoul of the Fourth Amendment’s equal protection clause.

A special reason to delight in this outcome is that AB 1070, which provided for this and other abominable maneuvers for monitoring immigration status by state officials, was financially backed by Correctional Corporations of America, who surely expected it to yield more imprisoned bodies to profit from now that the domestic inmate market is dwindling. Today is a good day for justice.

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Props to Dorit Reiss for the link.