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Articles by Holly S. Cooper

Haitian Prison Conditions Deteriorate in Aftermath of Massive Earthquake

by Holly Cooper

On January 12, 2010, a 7.0 magnitude earthquake rocked the island nation of Haiti.
Well-known are the catastrophic numbers of victims left in its wake, leaving hundreds of thousands of people entombed in rubble and over one million homeless. For many of Haiti’s prisoners, however ...

Immigrants Have Special Sixth Amendment Rights But Limited Time to Enforce Them

by Holly S. Cooper & Anel Carrasco

In negotiating plea bargains for immigrants, many defense lawyers forget to focus on the primary goal for their clients – staying in the United States. While no reliable data exists on how many immigrants are in state prisons, the federal government estimates that immigrants are about 25% of the federal prison population. Immigrants include individuals with green cards, refugee status, undocumented persons and persons here on visas. However, defense lawyers, district attorneys, attorney generals, and judges often fail to account for a person’s legal status here in the United States when entering a plea for a criminal offense.

With most defendants, less time in jail or prison may be a top priority but for immigrants a plea to a misdemeanor with no jail time may signify a life of exile to a country they have never known. Defense lawyers cannot assume what is good for the typical U.S. citizen defendant is good for the non-citizen defendant. In fact, many immigrants are willing to serve longer prison sentences in exchange for the security of being able to stay here in the United States.

Unfortunately, most immigrants do not realize the dramatic impact that a conviction can have on their lives until the immigration authorities begin deportation proceedings. This may happen while someone is serving a criminal sentence in prison or after the prison or jail sentence has ended.

Many prisoners are screened by immigration officials during their prison sentence. If immigration authorities believe the immigrant is deportable, they can put a detainer on the person, pick them up within 48 hours of the end of their release date, and transfer them to an immigration detention center anywhere in the United States.

Upon arrival in immigration detention, it begins to settle in that the accused may not have understood the exact impact of the plea agreement. The defense lawyer may not have ever explained that certain convictions result in almost automatic deportation. Also, the defense lawyer may have given mistaken legal advice that the plea would not have any impact on their immigration status – when in fact it does.

The Supreme Court, in Padilla v. Kentucky,130 S.Ct. 1473, 1480-82 (2010), recognized that the Sixth Amendment right to effective assistance of counsel includes a duty to inform non-citizen defendants of the impact a plea will have on their immigration status. For many defendants, this means a legal remedy may exist to overturn a conviction if in fact the defendant was not warned of the immigration consequences of his plea.
Immigrants must also show that this failure to advise about the immigration impact prejudiced the accused. Prejudice may include, if it had not been for the bad legal advice, the person could have asserted his right to a jury trial, could have raised a defense to the charge, or could have negotiated a plea that would not have stripped him of his papers or ability to get papers. Currently, a split is developing among the courts as to whether the Padilla rule is retroactive. See e.g., Commonwealth v. Clarke, 949 N.E.2d 892, 899 (Mass. 2011)(Padilla retroactive); U.S. v. Orocio, 645 F.3d 630 (3rd Cir. 2011)(same); Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011)(Padilla not retroactive); United States v. Hong, 2011 U.S. App. LEXIS 18034(10th Cir. 2011) (Padilla not retroactive to cases on ...