Tuesday, October 9, 2012
Jason Alexis Cade (NYU School of Law) has posted The Plea Bargain Crisis for Noncitizens in Misdemeanor Court (Cardozo Law Review, Vol. 34, 2013 (Forthcoming)) on SSRN. Here is the abstract:
This Article considers three factors affecting noncitizens charged with misdemeanors: (1) the expansion of deportation laws to include very minor offenses with little opportunity for discretionary relief from removal; (2) the integration of federal immigration enforcement programs intended to apprehend criminal noncitizens; and (3) the institutional norms in lower criminal courts, where little attention is paid to evidence or individual equities and where bail and other process costs generally outweigh perceived incentives to fight charges.
The Article contends that the convergence of these factors generates convictions triggering deportation and other negative immigration consequences without reliably indicating guilt, undermining the integrity of both criminal justice and deportation systems. The Article also argues that, contrary to the Supreme Court’s assumption in Padilla v. Kentucky, longtime lawful permanent resident defendants are unlikely to be able to effectively negotiate for immigration-safe dispositions in the petty cases where the rift between the underlying criminal conduct and the deportation outcome is largest.
The Article’s analysis suggests that reforms at both federal and state levels remain critical to address the plea-bargain crisis for noncitizens in misdemeanor court and the disproportional immigration consequences of petty convictions. At a minimum, courts should have a more accurate understanding of how the misdemeanor system works when interpreting the immigration consequences of ambiguous minor convictions, including in Moncrieffe v. Holder, currently pending before the United States Supreme Court.