Criminal Justice

America was founded on the promise of a better life, on people from all over the world coming to America to flee persecution, tyrannical governments, and to fulfill the American dream.

Yet we are breaking this promise everyday as our immigration system tears apart families, upends communities, and destroys lives. While American citizens that are detained for criminal charges are given publicly funded representation, immigrants facing civil charges are not given this right due to immigration.

The reason for this is civil court is not protected under Gideon v Wainwright, which mandated that criminal courts must give publicly funded representation. However, immigration court is unlike any other civil court. Immigrants are frequently jailed awaiting trial, with penalties that go beyond simple cash awards, but instead deportation to potentially dangerous countries, torn away from their families. They then must defend themselves under complicated and byzantine immigration laws, in a language they may not know. 97 percent of immigrants are deported when they don’t have legal counsel.

Your county may choose to fund the public defender’s office or a legal aid non-profit to represent immigrants coming before court. This has been shown to dramatically improve the outcomes of immigrants in the system. The first program launched in New York City, and is being replicated across the country including in San Francisco,

A study by Seton Law Hall found representation improved chances of a positive outcome 300 percent. For those that were detained during proceedings that figure jumped to 400 percent.

It’s also good for the budget, as a study by the NERA Economic Consultingfound that providing counsel to every poor immigrant in New York City would save the justice system in New York City up to 208 million, roughly matching the costs of the program. This is due to the increased efficiency of utilizing public defenders on cases where the outcome is clear.

Haters Say
We should not be wasting taxpayer money on non-American citizens. By giving civil court support to only poor illegal aliens we are giving them more support than we give our own citizens. This will make our community a haven for illegal immigrants who know they can get away with moving here, eroding the rule of law and causing crime.

We Say
Immigration court is different than other civil courts, and the stakes are much higher. These defendants are innocent until proven guilty in our court system, but they aren’t treated like it. Because the immigration system is so different than traditional civil court we owe it to these defendants to give them the representation they need. It also saves our system money and time, helping move cases through the system and giving our courts more time to focus on criminals.

How To Pass It
This policy has only been passed in large cities or in small cities in New York State where state governments have subsidized the costs. It will take some outside entity to supplement the budget to add this. This will generally occur with whoever the entity the funds these offices, generally the state of County. The first step should be to fund a pilot study, and then after a successful pilot add this into the defenders permanent budget.

What you can do
The Public Defenders office needs to be a key advocate for this policy. How this may be funded and politics of it depends heavily on your state’s model for public defenders offices. Gideon at 50 has created a great map to review this here.

The first step should be to find a pro-immigration organization in your area who would be a supporter of this policy. They should reach out to the public defender’s office to look into the feasibility of implementing this policy locally. It will then fall to the agency that fund the public defender to supplement their budget for this added expense.

In New York City, lawyers make all the difference for immigrant detainees facing deportation -Public Radio International

A National Study of Access to Counsel in Immigration Court – Penn State

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