New Research on Criminal Defense of Immigrants in the United States

Guest post by Ingrid Eagly of UCLA School of Law. The full article on which this piece is based is available for free download on SSRN. 

Today even minor interactions with the criminal legal system in the United States can result in detention, deportation, and family separation. Parents can be tragically torn from their children by nonviolent convictions that that do not even result in jail time. Unfortunately, many noncitizens first learn that conviction will lead to deportation long after their guilty plea, when they are placed in removal proceedings.

To address this issue, in 2010 the Supreme Court ruled in a decision called Padilla v. Kentucky that the Sixth Amendment of the U.S. Constitution requires appointed counsel in criminal cases to inform their clients of any adverse immigration consequences that could result from a guilty plea in a criminal case. As the Court emphasized, “when the deportation consequence is truly clear. . . the duty to give correct advice is equally clear.”  In so ruling, the Padilla decision called for a more holistic and comprehensive approach to criminal defense representation that includes immigration law. The Padilla decision is widely considered to be this century’s most important right-to-counsel decision from the high court.

Although over a decade has passed since Padilla, astonishingly little is known about how public defense systems have incorporated this watershed decision on the ground. In the United States, counsel must be appointed in criminal cases to all individuals who face possible jail time and cannot afford counsel on their own. What are these lawyers who take on court appointments doing to make Padilla a reality?

In a new research project just published in the Stanford Law Review, I worked with co-authors Tali Gires, Rebecca Kutlow & Eliana Navarro Gracian to empirically study how public defenders have gone about representing their clients post-Padilla. Our research focused on implementation in California—the state with the largest immigrant population in the United States and a longstanding commitment to public defense. To explore this question, we worked in collaboration with the Immigrant Legal Resource Center (ILRC) and the California Public Defenders Association (CPDA) to conduct two statewide surveys of public defenders in California. As an additional step in our study, we conducted in-depth interviews with chief defenders and staff public defenders in counties throughout the state.

The findings that flow from our study provide the first empirical look at the work of public defenders in the decade following Padilla and offer detailed policy recommendations for the future.

In particular, we trace how some public defender offices in California employed dedicated immigration experts. In-house immigration experts are attorneys who are experts in immigration law and have a mastery of the complex intersection between immigration and criminal law. Their precise role varies from office to office, but generally includes advising public defender clients on immigration consequences, a practice known as Padilla advisals. Other county public defense systems have contracted with the ILRC to provide Padilla counsel and increased training of line defenders. However, importantly, many county public defense systems in the state have not yet developed a clear plan for implementing the decision. These problems are particularly acute in smaller-sized counties and those that rely on private attorneys to take court appointments rather than establishing an institutional public defender office.

In codifying the Padilla decision into the California Penal Code in 2015, the California legislature recognized that “immigration consequences of criminal convictions have a particularly strong impact in California.” California has also passed other new laws that recognize the need to protect the safety and well-being of the people of California, including  the California Values Act, which prohibits the use of state funds to transfer individuals from local jails into immigration custody without a warrant or judicial order. As we discuss in the Article, as the protections for noncitizens grow, so too do the responsibilities of public defenders ensuring that these new laws are followed.

Going forward, we argue that new state funding must be allocated with an eye toward improving the quality of trial-level indigent defense services for persons facing possible immigration consequences.

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How to cite this blog post (Harvard style) 

Eagly, I. (2022) New Research on Criminal Defense of Immigrants in the United States. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2022/04/new-research [date]