ARIZONA ANTI-IMMIGRATION LAW LIKELY TO END UP BEFORE US SUPREME COURT

In a major setback for Arizona and Gov. Jan Brewer, the 9th Circuit Court of Appeals recently concluded there was sufficient evidence to believe that provisions of SB 1070 are an unconstitutional infringement on the exclusive power of the federal government to regulate immigration. The Ninth Circuit upheld a lower court's block of much of Arizona's controversial SB 1070 law aimed at illegal immigration.

The judges agreed with U.S. District Court Judge Susan Bolton, who issued a preliminary injunction in July preventing sections of SB 1070 from being enforced. The three-judge panel ruled that the lower court "did not abuse its discretion" in blocking parts of the law from taking effect last year.

The court specifically rejected Arizona’s argument that it could make it a state crime for an undocumented worker to seek employment in Arizona. The judges noted that Congress, in approving federal regulations, chose not to make looking for work a criminal act.

The court found that the relevant provisions of S.B. 1070 facially conflict with Congressional intent. The decision rejected Arizona's contention that it could enact a state law against undocumented workers seeking employment, citing Congress' affirmative choice not to criminalize work as a method of discouraging unauthorized immigrant employment. By imposing mandatory obligations on state and local officers, the court held that Arizona interferes with the federal government's authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed DHS agents. The opinion stressed that the question was not, as Arizona claimed, whether state and local law enforcement officials can apply the statute in a constitutional way. The court found that there can be no constitutional application of a statute that, on its face, conflicts with Congressional intent and therefore is preempted by the Supremacy Clause.

The court also upheld Bolton's injunction against Arizona law enforcement arresting suspected illegal immigrants without warrants based on a belief that they could be subject to civil removal from the United States.

The decision, a victory for the Obama administration and immigration activists who filed suit to block the law, means the SB 1070 case will likely find its way to the Supreme Court.

Prison Overcrowding in California: Time is Running Out

Fyodor Dostoyevsky once said that the degree of civilization in a society is revealed by entering its prisons. As a society we should be concerned about the deplorable condition of our prisons, particularly in California.
The prison system in California is severely overpopulated, resulting in inhuman conditions. The prison population has grown from 76,000 in 1988 to nearly 170,000 today, in a system that is designed to hold 80,000.
In 2001, The Prison Law Office in Berkeley, Calif., filed a class-action lawsuit alleging that California prisons were in violation of the Eighth Amendment to the Constitution, which bans "cruel and unusual punishment." The case was consolidated with another case and assigned to a three-judge court panel in federal court. Following a lengthy trial, the three federal judges determined that serious overcrowding in California's 33 prisons was the "primary cause" for violations of the Eighth Amendment. An order to reduce the prison population was entered on January 12, 2010. The court ordered the release of enough prisoners so the inmate population would come within 137.5 percent of the prisons' total design capacity. That amounts to between 38,000 and 46,000 inmates being released. California appealed the order to the Supreme Court.
On November 30, 2010, the United States Supreme Court heard oral arguments in the case. The legal question presented by the appeal is the following: Does a court order requiring California to reduce its prison population to remedy unconstitutional conditions in its correctional facilities violate the federal Prison Litigation Reform Act? The broader question is this: What type of society are we to treat our fellow human beings in such a callous and barbaric manner?
Reducing prison overcrowding also has practical benefits. We now understand—in psychology and related disciplines—that powerful social contexts like prison can have real consequences for the people who enter them. When prison environments become unduly painful, they also become harmful, and prisoners carry the effects or consequences of that harm back into the free world once they have been released. Thus, bad prisons are not only unpleasant or uncomfortable; they can be destructive as well.
The Supreme Court’s decision will have a great impact on the future of prison conditions in this country. A decision is expected within the next few months.
What would Dostoyevsky say about our prisons?

DO YOU WANT THE POLICE TO INTERROGATE YOUR CHILDREN AT SCHOOL WITHOUT YOUR CONSENT?

The U.S. Supreme Court decided in early November to consider whether a juvenile burglary suspect who was interrogated at school by the police should have been given a Miranda warning about his rights.

In 2005, a North Carolina boy identified as J.D.B., a 13-year-old special education student, was questioned by police who showed up at his school. He was suspected in a string of neighborhood burglaries.

The boy was escorted to a school conference room, where he was interrogated by a Chapel Hill, N.C., juvenile crimes investigator in the presence of the school resource officer, an assistant principal, and a school administrative intern. J.D.B.'s parents were not contacted, and he was not given any warnings about his rights under the 1966 high court decision in Miranda v. Arizona, such as the right to remain silent or to have access to a lawyer.

After being confronted with the officer’s suspicions, and with the assistant principal urging him to "do the right thing because the truth always comes out in the end," the boy confessed to the burglaries and wrote a statement admitting the crimes.

Juvenile-delinquency proceedings were filed against the boy charging him with two counts each of breaking and entering and larceny. His lawyers filed a motion to suppress his confession but they lost in lower courts and before the North Carolina Supreme Court.

The North Carolina Supreme Court rejected the boy's claim that he was in custody during the school interrogation and should have been given a Miranda warning. In a 4-3 decision in December 2009, the court said it could not consider the boy's age or special education status in determining whether he was in custody, and because he was not in custody, he was not entitled to Miranda warnings.

One of the dissenting justices said the police took advantage of the middle school's "restrictive environment and its psychological effect by choosing to interrogate J.D.B. there."

"It is troubling that in the instant case a public middle school, which should be an environment where children feel safe and protected, became a place where a law enforcement investigator claimed a tactical advantage over a juvenile," said the dissent.

The court will hear arguments in the case early next year, with a decision likely by late June 2010.

Padilla v. Kentucky: Defense Counsel Has a Duty to Advise a Client About Immigration Consequences

Padilla v. Kentucky: New Supreme Court Case on Defense Counsel’s Duty to Advise Client of Immigration Consequences

In an important case issued on March 31, 2010, the United States Supreme Court held that defense counsel has a duty to advise a noncitizen client of the immigration consequences of a plea . Padilla v. Kentucky, No. 08-651.

In 2002, Jose Padilla, not the terrorism detainee, a Legal Permanent Resident of the United States, pleaded guilty to a Kentucky drug trafficking offense. Padilla claimed he pled guilty in reliance on his defense counsel’s advice that he did not have to worry about deportation as a consequence of his plea. In fact, under federal law, drug trafficking is a deportable offense. Padilla claimed that under the Sixth Amendment, he was denied effective assistance of counsel because his defense counsel failed to advise him as to the possible immigration consequences of his plea, and in fact misadvised him. The Commonwealth of Kentucky contended that Padilla was not denied effective assistance of counsel, because the Sixth Amendment does not require that defense counsel advise clients of collateral consequences, and immigration consequences are collateral consequences of guilty pleas.

The questions presented in this case were: (1) Whether the mandatory deportation consequences that stem from a plea to trafficking in marijuana, an "aggravated felony" under the Immigration and Nationality Act (INA), is a "collateral consequence" of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise; and (2) Assuming immigration consequences are "collateral,” whether counsel's gross misadvice as to the collateral consequence of deportation can constitute a ground for setting aside a guilty plea which was induced by that faulty advice.

In a decision which expands defense counsel’s duties, the court held that because counsel must inform a client whether his plea carries a risk of deportation, Padilla had sufficiently alleged that his counsel was constitutionally deficient.

The rationale for the decision was that changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate deportation’s harsh consequences. Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.

The Supreme Court pointed out that before deciding whether to plead guilty, a defendant is entitled to “the effective assistance of competent counsel.” Strickland v. Washington, 466 U. S. 668 (1984). The Supreme Court of Kentucky rejected Padilla’s ineffectiveness claim on the ground that the advice he sought about deportation concerned only collateral matters. However, the Supreme Court pointed out that it has never distinguished between direct and collateral consequences in defining the scope of constitutionally “reasonable professional assistance” required under Strickland, 466 U. S., at 689. The question whether that distinction is appropriate need not be considered in this case because of the unique nature of deportation. Although removal proceedings are civil, deportation is intimately related to the criminal process, which makes it uniquely difficult to classify as either a direct or a collateral consequence. Because that distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation, advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.

Editor’s Note: Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. However, it is my practice to always consult with an immigration attorney whenever there is any doubt about immigration consequences.