Monday, February 22, 2016

Providing Counsel In Removal Proceedings Would Save Money and Prevent Family Separation

Guest blogger: Leandra Gamboa, first-year law student, University of San Francisco:

“Is the system broken? I would think so.” Chief District Judge Martha Vazquez comments on what she observes at the federal courthouse in Las Cruces, New Mexico. Overburdened justice systems across the nation seem to share this sentiment as they are forced to stretch resources to accommodate the overwhelming number of cases related to illegal entry crimes.
In an article published in the Albuquerque Journal, Judge Vazquez conveys, “It’s really a crisis point. Nobody should be operating a federal court system under these conditions.” She admits, at times, “we get the names of the people mixed up.” The crisis she refers to begins with the 300% increase in the number of felony cases filed in New Mexico’s three federal courthouses over the past decade – the majority involving immigration offenses. Federal prosecutors in Las Cruces are juggling caseloads more than seven times higher than the national average, with numbers increasing from 1,800 felony immigration cases filed in 2005. From fiscal year 2004 to 2005 figures show the New Mexico federal court system was the busiest in the nation, based on felony cases handled per judgeship. State District Judge James T. Martin laments, “We don’t practice law. We practice time management. For every 10 [immigrants] that we get rid of, 20 come in.” Deepening this concern is the fact that these numbers exhaust the state’s federal funding.

Due to the sheer volume of immigration cases filed in federal courts, the thousands of federal prisoners are housed in county facilities. The article reports that county jails in New Mexico can receive federal money for undocumented immigrants who stay in their detention centers for three or more days. The U.S. Marshals Service, the agency responsible for federal detainees until they are sentenced, handled a daily average of about 500 detainees in fiscal 1997 – as of October 2005, the average has spiked to over 2,400 detainees. At an average daily inmate cost of $48 to $56 per detainee the yearly costs to the state are topping $42 million.

The Federal Public Defender’s Office estimates that at least 70% of the cases the dozen lawyers are handling are immigration-related. In response, the office stopped defending most misdemeanor immigration cases in 2005. These cases are now handled by private, contract attorneys.

I worked for an attorney recruited for this program, criminal defense attorney, Margaret Strickland. Attorney Strickland is assigned six to eight criminal immigration cases every two weeks and occasionally receives new cases each week. What I observed while working for Attorney Strickland was that booking documents would often list inaccurate personal information making it difficult to locate certain individuals in one of three possible detention centers. Attorney-client communication was routinely problematic and the process was time consuming with little to no cooperation from prison staff or immigration enforcement agencies. Obstacles such as these make the job of providing quality representation difficult for defense attorneys already faced with the task of interpreting two complex bodies of law.

This is a policy put in place to help combat the immigration crisis in southern New Mexico but I think there is more to be learned by looking to the steps being taken in other parts of the country to alleviate some of the burden placed on federal court systems.

In 2013 New York City became the first community in the nation to make the controversial move to provide public defenders to represent every detained, indigent noncitizen in civil immigration court who faced deportation. After implementation, opponents of these policies asked how these resources could be devoted to undocumented aliens, including so-called criminal aliens, when the needs of many legal residents go unmet?

NERA Economic Consulting, in conjunction with the New York City Bar Association attempted to defuse, at least the financial concerns, in a published report suggesting that providing representation to indigent immigrants would pay for itself. The thirty-seven-page report estimates that it would cost $208 million for the federal government to provide legal representation for every indigent immigrant facing deportation. However, between $204 and $208 million would be saved through reduced spending on detention, transportation and other enforcement related costs.

The study estimates that public defenders would help reduce the total time immigrants spend in detention by nearly 1.1 million days per year. Because legal counsel is able to help identify possible forms of relief and secure dismissals or the release of their clients awaiting the outcome of their cases, the result would be a reduction in detention expenditures. For those who lacked legal recourse, a well-counseled client might accept deportation without raising objections or causing unnecessary delays, speeding the removal process and reducing the number of days spent in detention. The release of detainees would create other economic benefits, as these individuals would be able to go back to caring for dependents, return to their jobs and resume paying taxes. 

In the first six months of the New York “pilot” program, legal representation was provided to 190 immigrants facing deportation. Almost half of those cases are still pending, but administrators say that lawyers have identified forms of relief from deportation for about half of the clients and more than a quarter of the participants have won release from detention. This program has paved the way for public defenders offices in other parts of the country, including northern California.

In what was described as a “historic move” occurring in August 2014, the San Francisco Public Defenders Office hired Francisco Ugarte, a full-time civil immigration attorney to help clients facing deportation. Ugarte is tasked with advising trial attorneys on the immigration consequences in cases involving criminal charges against noncitizens. Nearly 36% of San Francisco residents are foreign born and approximately 7% of the 23,000 clients served annually by the public defenders office are undocumented. No additional city funding is being used to pay for Ugarte’s position as it was created from one of its budgeted attorney positions.

A county with a similar demographic, Santa Clara became the third county in the Bay Area (after San Francisco and Alameda) to hire an in-house immigration expert. Sonoma County was soon to follow. Their reasoning echoed the notion that this decision will save taxpayers money in the long run, mainly by keeping families together instead of splitting them apart which, “can drive up social and economic costs such as foster care and welfare.” Another reason is to protect the county from potentially expensive lawsuits claiming inadequate legal representation. From a practical standpoint, supporters in Sonoma Country argue that, “nuances in federal law are not fully understood by criminal lawyers” and the decision is working to make the system as a whole more effective.

Judge Vasquez compares the atmosphere in the Las Cruces courthouse to traffic court, “It’s just a sea of guys in orange.” The chances that the immigration crisis will soon end are slim. For communities like this one faced with overburdened and overworked court systems, it may be time to consider the benefits of providing noncitizens with representation instead of depleting state resources to keep them detained in overcrowded facilities. Lenni Benson, a professor at New York Law School proposes, “You don’t have to be pro-immigrant rights, [y]ou can say, ‘I’m supporting indigent immigrants’ rights because it would make the system more efficient.’” 


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