My blog –
In additon to the professional and opinion articles that I publish in journals, I have now included a blog where I can add more articles that I do not necessarily want to publish. I welcome your comments by email which I will attempt to post on the site when they are entertaining.
I hope you will enjoy this new blog. Labe Richman, LabeNation.com February 26, 2007
Email: [email protected] All Rights Reserved, Copying is Prohibited
May 19, 2017
The Iceberg Below the Water: Consideration of Immigration Consequences in Plea Bargaining.
By Labe M. Richman
Kings County District Attorney Eric Gonzalez’s announcement on April 24, 2017, that his office would consider immigration consequences in the plea-bargaining of criminal cases bears some discussion to understand the legal, ethical, and equitable basis for this policy. See, Denney, Andrew, DA Policy Aims to Limit Immigration Impact for Low-Level Offender, N.Y.L.J. p. 1, April 25, 2017; Feuer, Alan, New York Times, Prosecutors in Brooklyn Aim to Limit Deportations, Section A, p. 21, April 24, 2017.
The reason that a well-crafted plea bargain can have a huge impact on an immigrant’s life is that, in most cases, it is the statutory elements of the crime of conviction, not the facts of the offense, which govern the extent of the immigration consequences of a criminal disposition. Mathis v. U.S., 126 S.Ct. 2243 (2016); Moncrieffe v. Holder, 133 S.Ct. 1678 (2013); Descamps v. United States, 133 S.Ct. 2276 (2013); Matter of Velasquez-Herrera, 24 I & N Dec. 503 (BIA 2008); INA 237(a)(2)(A)(i)(IHII), 8 U.S.C. § 1227(a)(2)(A)(i)(I)-(n)(2006); see also Fajardo v. U.S. Att’y Gen., 659 F.3d 1303, 1307 (11th Cir. 2011); Jean-Louis v. Att’y Gen., 582 F.3d 462, 473-74 (3d Cir. 2009). This is called the “categorical approach” where the immigration court takes the generic legal category which leads to deportation or inadmissibility and determines whether the statutory elements of the defendant’s crime of conviction fit that federal category. [Also in federal criminal cases, district courts will use the exact same approach in determining whether a past conviction fits within a sentencing enhancement provision. Mathis v. U.S., 126 S.Ct. 2243 (2016)]. The rationale for the categorical approach is that it avoids time-consuming litigation over factual matters from long ago and instead involves a more simple and contained analysis of the criminal statute underlying the conviction.
This categorical approach makes plea bargaining extremely effective in avoiding or ameliorating immigration consequences. If the facts controlled the consequences, plea bargaining could not erase the effect of the victim’s or the police officer’s version of what occurred as sworn to in the complaint, grand jury testimony, or as admitted by the defendant in his plea allocution. If the elements of the statute control, then the parties can pick a statute of conviction which fully punishes the defendant for his conduct but avoids disproportionately severe immigration consequences.
There is no question that the U. S. Supreme Court has given its blessing to consideration of immigration consequences by prosecutors in their search for justice. In the landmark case of Padilla v. Kentucky, 130 S.Ct. 1473 (2010), the Court emphasized that bringing deportation into the plea bargaining process “can only benefit the State and non-citizen defendants . . .”. Padilla v. Kentucky, 130 S.Ct. at 1486. The reason for this is that the immigration result of a conviction after trial may be so severe that a comparable plea-disposition that avoids mandatory deportation will be so attractive that no sane defendant would waste the government’s resources at trial. This creates a strong motivation to dispose of the case quickly while accepting significant penal consequences that benefit the State. This language in Padilla has put to rest arguments that such plea bargaining was somehow improper, illegal, or a violation of federal drug and immigration policy.
The Past President of the National District Attorney’s Association, Robert Johnson, stated in the St. Louis Law Review that the “Supreme Court’s recognition of the importance of collateral consequences to a just resolution of a matter should influence a prosecutor’s views.” Johnson, Robert, A New Era for Plea Bargaining and Sentencing: The Aftermath of Padilla v. Kentucky: A Prosecutor’s Expanded Responsibilities Under Padilla, 31 St. Louis U. Pub. L. Rev. 129, 136 (2011). Johnson stated:
Our job, our duty is to seek justice. How can we ignore a consequence of our prosecution that we know will surely be imposed by the operation of law? . . . These collateral consequences cannot easily be changed or bargained away when justice requires them. But we must consider them if we are to see that justice is done . . . . As a prosecutor, you must comprehend this full range of consequences that flow from a crucial conviction. If not, we will suffer the disrespect and lose the confidence of the very society we seek to protect.
National District Attorney’s Association, Message from the President, February 14, 2007. These sentiments were echoed by our own Court of Appeals in People v.. Peque, 22 N.Y.3d 168 (2013), where it acknowledged that immigration consequences are of “tremendous importance” that they have a “grave impact” and are “certain, pivotal and prevalent,” constituting an “enormous penalty” where someone is taken away from their family and the family loses its financial support, where the defendant loses “the blessings of liberty” and is saddled with a “harsh superadded exaction,” that is “uniquely important,” and is a “penalty more dreaded than prison.” 22 N.Y.3d at 188-89, 192, 207-208.
Another important development is that the ABA’s Criminal Justice Standards for the Prosecution Function have incorporated these immigration concerns. In deciding which charges to prosecute or dismiss in a criminal case, the standards suggest that a prosecutor consider “whether the authorized or likely punishment or collateral consequences are disproportionate in relation to the particular offense or the offender.” Fourth Edition, Criminal Justice Standards for the Prosecution Function (“CJSPF”)(2015), Standard 3-4.4(a)(vi). This standard is particularly applicable when probation or fines are imposed because in many cases the immigration consequences could be mandatory deportation, or lifetime bars to a green card or citizenship. The standard for plea bargaining takes the same position, noting that the “prosecutor should consider collateral consequences of a conviction before entering into a disposition agreement.” CJSPF, Standard 3-5.6(c); also see, CJFPS, Standard 3-8.5 (interests of justice can influence a prosecutor’s disposition of a post-conviction motion).
Of course, consideration of such consequences may not win out for immigrants in the end when violent crimes are involved and the District Attorney believes that collateral consequences are fully appropriate. However, the consideration of collateral consequences when the penal purpose of the prosecution can still be fully actualized, are important steps in the right direction. Mr. Gonzalez’s policy also has the added effect of making his office’s convictions more immune to attack. Many prosecutors are trying to foreclose post-conviction attacks by handing defense counsel boilerplate advisals during guilty pleas that seek waivers of counsel’s duty to consider such consequences in the conduct of the defense. Such band-aid waivers are much less effective than Mr. Gonzalez’s course which seeks to actually effectuate counsel’s duty under Padilla so that no further litigation is needed or possible. Other District Attorneys in New York should consider following Mr. Gonzalez’s lead.
The Problem with Law and Order
In an effort to decrease the unfair, two-dimensional depiction of Moslems as terrorists, Homeland has hired one of its critics, City College Law Professor Ramzi Kassem, to consult on scripts. This development should be emulated by the Law and Order franchise, a ubiquitous and popular series of entertaining legal procedurals which have been an important source for the public on how criminal cases unfold. Unfortunately, in many episodes, Law and Order has not provided us with accurate information and this has prejudiced the public’s view of the criminal justice system.
To create dramatic conflict, the writers often highlight an alleged injustice perpetrated by the technicalities of the law or the vagaries of the system, and the audience becomes incensed and is ultimately drawn into the story line of law enforcement’s valiant effort to overcome the unfair obstacles placed in its path. The obstacles, however, are often fantasies that have no relation to the actual law or how the system works.
For example, on one episode a child witness was shot by the criminal defendant’s associates on his way to testify in the grand jury and his trip to the hospital delayed the voting of an indictment fifteen minutes passed the time for holding a defendant in jail without action by the grand jury. The Law and Order Judge reluctantly released the killer to the horror of the prosecution and, of course, the audience. I was mortified for another reason – this particular law does not call for such action and no sane judge would ever release a killer because an indictment was 15 minutes late. The actual provision, Criminal Procedure Law Section 180.80, allows incarceration in spite of a delay in the indictment for “good cause” or in the “interests of justice.” I found a case where a two-hour delay was countenanced for something as mundane as congestion of prosecutions in the grand jury chamber. Certainly there can be no doubt that the shooting of a child witness is a sufficiently compelling circumstance to excuse a 15 minute delay for good cause or in the interests of justice.
Not only did the show grossly misrepresent the law, but it defrauded the public regarding how judges work in the system. They are uniformly pro-prosecution, and they do not bend over backwards to use technicalities to free killers, only to see their picture on the front page of the New York Post the following day in a harshly negative article questioning their competence and character.
Obviously the producers of Law and Order think that having judges who favor prosecutors and having laws that actually bend to the interests of justice is not good for ratings. Instead, the writers corrupt the law to evoke a sense of outrage in the audience that keeps them watching but does not tether them to reality. This misinformation is particularly pernicious because it is not coming from a source that a viewer would normally question, such as a commercial, a politician in a debate, or a corporate spokesperson, who the viewer would expect to be biased. The show pretends to be based on the truth, as it says, the stories are “ripped from the headlines.” It is a gritty show that purports to deal earnestly with New York City and the criminal laws of this jurisdiction and these lies about the law and the system are enmeshed within a compelling and emotional story which allows the falsehood to seep into the consciousness of the audience with no critical filter. And, there is no natural enterprise, such as the group of pundits who, for example, conduct a post-mortem of politician’s speech, to act as a “truth squad.” The end result is an uninformed populace who mistakenly think that the system is stacked in favor of the accused and that we need to elect law and order candidates to correct this unjust imbalance.
The show runners repeatedly defame the title character of their show – that is, the law. It would help if there was a disclaimer at the beginning of each episode:
All laws depicted in this show are fictional. Any similarity to a real law is merely coincidental.
March 1, 2013
We are very sad that the Supreme Court found that Padilla v. Kentucky is a new rule which will not be given retroactive effect in federal courts. This is a huge setback. However, the decision left open some issues and, indeed, individual states are free to do their own retroaactivity analysis and we are hopeful that we can continue to press Padilla claims in New York state courts. The issue is very complicated and we will be pressing this issue as best we can in the coming months. We believe that immigrants desperately need a remedy to vacate pleas of guilty that they entered without knowing the true stakes. We only hope that New York Courts will agree.
I am happy to announce that I will be performing my Monologue, “Law and Disorder: My Courthouse Stories” at Judson Memorial Church on the evening of March 29, 2012. The performance will be in honor of the Immigrant Defense Project and will request that attendees make contributions to IDP. Here is the link for more information:https://immigrantdefenseproject.org/law-and-disorder-benefit-performance-by-labe-richman-march-29 . this will be a really fun evening.
April 22, 2010
We are so happy that the U.S. Supreme Court decided in Padilla v. Kentucky that an immigrant defendant has the right to be told by his attorney that his conviction will lead to deportation. The Supreme Court acknowledged what we have known for some time, that immigration consequences are often more important than penal consequences and that it is patently unfair for defendants to be enticed to plead guilty to crimes without this critical information.
In the short run, there are many defendants who will seek to revoke their pleas of guilty based on this case. But in the long run, the system will benefit because the pleas will be knowing and intelligent, based on proper advice, and in the future, immigrants will not be able to say that they were not told of the true consquences of their convictions.
March 12, 2010
Last week Governor Patterson pardoned Qing Wu for five robberies he committed when he was 16 years old. This alien defendant became a successful financial executive and had no further arrests. He was being held in immigration custody for deportation with no remedy because of his three to nine year sentences. See, Post below, dated February 19, 2010. The pardon solved his immigration situation.
However, it should be noted that, although a pardon can end the immigration consequences of very serious crimes, like rape and robbery, pardons do not stop the immigration consequences of controlled substance offenses. This is an irrational distinction which should repealed by Congress or struck down by the courts as violating the Constitution. It makes no sense that a governor’s pardon of a rape is controlling on immigration authorities but a pardon of a misdemeanor cocaine possession is meaningless to ICE. No one can seriously defend such a ridiculous policy.
February 26, 2010
On February 19, 2010, the NY Times published a front page article on Qing Wu, a former member of a teen gang who had pleaded guilty to five robberies and received three to nine years when he was only 16 years old and was now held in immigration detention many years later. Any robbery case with a sentence of a year or more is an aggravated felony under immigration law which leads to deportation with no remedy and this particular person had no one in China and had lived in the United States for most of his life.
The article reported that the judge on the case was supporting the defendant’s pardon request to the governor because the defendant had done everything that the judge asked of him. He had done his time and rehabilitated himself and now had been working steadily at a good job in the financial sector. There were no further arrests.
There are two issues which were not emphasized in the article which could have ameliorated this situation. One is to change the Youthful Offender statute to allow for longer prison terms and the other is to require that judge’s know when a defendant’s conviction will lead to deportation with no remedy.
Had this 16 year-old defendant been treated as a Youthful Offender in the first place, he would not have this immigration problem and would not need a pardon. The judge did not grant the defendant Youthful Offender status for two reasons. The first reason is that the prosecution very much wanted a sentence of three to nine years which was not unreasonable for someone convicted of five robberies. The maximum sentence on a Youthful Offender adjudication is one and a third to four years. Therefore, the judge would have to deny Youthful Offender treatment if he imposed a sentence of three to nine years.
This is a real shame for this defendant and other alien defendants. There are cases where a 16-18 year old needs more jail time than one and third to four years but deserves Youthful Offender treatment so that they can stay in the country and not be saddled with the stigma of a felony conviction. The Youthful Offender statute needs to be changed so that eligible youths may be fully punished but obtain the advantages of Youthful Offender status.
The second reason that the Court did not grant Youthful Offender status is that the court had no idea about the immigration consequences of the conviction. Lawyers should know enough about their clients situation to know that they are aliens and that the conviction will be an aggravated felony under immigration law that will lead to deportation with no remedy. Not only should the defendant know this before he or she pleads guilty, but the judge should know this when it is sentencing a defendant and making the Youthful Offender decision. Had the judge known that denying Youthful Offender treatment would lead to total banishment to China for the rest of his life, the court may have decided that one and third to four was sufficient punishment. And, it probably would have been sufficient for this defendant who had a lot of potential and ultimately did turn his life totally around.
The Legislature should change the Youthful Offender statute to allow for longer jail sentences and it should be required that judges and the defendants know when the conviction will lead to deportation with no remedy.
October 4, 2009
REALISM IS NOT REALITY
By Labe M. Richman
I was drawn into an episode of “Law and Order” on one of the many channels that carries the show. A boy miraculously survived a home invasion where his entire family is murdered. Luckily, he is able to identify his attacker and a hit man is soon arrested. On his way to testify in the grand jury, the witness’s car is attacked by gunmen and he is diverted to the hospital for treatment. Afterward, the police take him to the courthouse to testify, the grand jury votes a true bill (an indictment), and the assistant district attorney rushes up to the court room where the defendant is having a hearing. When she arrives, defense counsel moves for the hit man’s release from jail on the grounds that New York Criminal Procedure Law, Section 180.80, requires a defendant’s release if he is not indicted or given a felony hearing within 144 hours of his arrest. The prosecutor objects, noting that the indictment is just fifteen minutes late. The judge, stating that the law requires it, reluctantly releases the monstrous hit man to everyone’s horror.
In this episode, “Law and Order” once again shows us how unfair and horrible the criminal justice system is. The defendant can game the system by having his associates shoot the witness on his way to court so he can get out of jail on a technicality. The audience is incensed and is now ready to vote in a new “law and order” slate to the legislature. This outrage also induces the audience to keep watching the show to root for the prosecution to overcome this incredibly unfair legal system, one always stacked in favor of the criminals.
The problem with all of this, a problem I often find with the show, is that its writers have entirely misled the viewer about New York law. This hit man, under these circumstances, would never be released from custody in any court. Section 180.80 allows the Court to keep any defendant in jail when the prosecution has shown “good cause” why a defendant should not be released, which is defined as any “compelling fact or circumstance” which kept the prosecutor from conducting a felony hearing or any reason that release would not be in the “interests of justice.” I found a precedent where an indictment was delayed two hours past the 144 hour rule because of congestion in the grand jury room and the defendant was still not released. Obviously, a case where the witness is attacked by gun fire on the way to court and has to go to the hospital and the indictment is only delayed by 15 minutes falls within the statute’s exceptions.
Further, judges in New York are not looking to release violent criminals on technicalities so they can find their picture on the front page of the New York Post two days later when the criminal strikes again. Indeed, as a general rule, judges do whatever they can to help the prosecution win convictions of defendants the court believes are guilty and they vigilantly attempt to keep those defendants in jail away from the public.
Obviously, “Law and Order” believes that having the judge on the prosecutor’s side, as it is in real life most of the time, and having laws which bend to the “interests of justice,” would not be interesting TV. Instead, the writers lie to create dramatic conflict and to evoke a sense of outrage in the audience. These lies are particularly troubling because the show pretends to be based on the truth, as it says, the stories are “ripped from the headlines.” Moreover, the show does not digress to the regular characters’ love or family life, but seriously focuses on the real life stories of cases in the criminal justice system. It appears to be truthful. Law and Order does not depict some fictional land with fictional laws, but purports to deal earnestly with New York City and the criminal laws of this jurisdiction.
The misinformation the show disseminates is particularly pernicious because it is not coming from a source that a viewer would normally question, such as a commercial or a politician, who the viewer would expect to be biased. The lies are also enmeshed within a compelling and emotional story line which allows the lie to seep into the consciousness of the audience with no critical filter. And, worse, there is no natural enterprise, such as the group of pundits who, for example, act as a “truth squad” when conducting a post-mortem of a politician’s speech.
If a person was lied about, such as the Palestinian covered in many papers this year who was allegedly mis-characterized as a terrorist by Sacha Baron Cohen in the movie “Bruno,” he would have the right to sue. Here, it appears that the law of the State of New York cannot sue for libel because it is not an individual. However, the law is actually the title character of this show and it’s a character from real life who the show lies about on a regular basis.
It is probably true that nothing can be done to keep “Law and Order” from lying about what the law is in New York. But, at minimum, they should be required to post a disclaimer that “all laws depicted in this show are fictional. Any similarity to a real law, living or dead, is merely coincidental.”
Labe M. Richman
February 27, 2007
REST AREA WISDOM
I didn’t expect to be inspired at a rest stop on the New Jersey Turnpike. My only past rest area epiphanies occurred when I walked past the line at the women’s bathroom and realized that a candidate who espoused toilet equality for women (meaning the same number of toilets for women as toilets and urinals for men) could ride the female majority in the American population to the state house if not the White House.
However, yesterday I saw that some thoughtful entity put up a classy, framed and matted, informational exhibit at the James Fenimore Cooper Rest Area. Below Cooper’s picture and other historical information was a list of famous quotations, one of which was the following: “It is a besetting vice of democracies to substitute public opinion for law. This is the usual form in which masses of men exhibit their tyranny.” Unfortunately, there was no line at the exhibit. Maybe they should have put it in the women’s bathroom. In any event, as I am sure you figured out, the quote inspired this post.
First, Cooper was right because public opinion is a flawed basis for law as much of the public may not have sufficient expertise or information to properly formulate a valid and cogent law on a particular subject. I am not sure if it’s the public’s fault or the media’s fault that on numerous T.V. channels we see gavel to gavel coverage of where Anna Nicole Smith?s flesh and implants will rest or numerous reports on Britney Spear’s new haircut. Also, public opinion is often based on anecdotal information and personal predispositions which are not scientific or based on a review of the relevant facts or research on a subject.
That’s why we expect our legislators to investigate subjects and exercise their best judgment when they vote on laws. If their judgment conflicts with public opinion, they must use their best efforts to communicate the wisdom of their decision to their constituents. (As an aside, maybe lawmakers should use Hollywood to convince their constituents. Why should lawmakers communicate from behind a podium. Al Gore’s movie “An Inconvenient Truth” did a much better job of communicating his views on global warming than 20 years of speeches from behind a podium). Laws are too important to be based on public opinion polls and legislators need to stand up for what’s right and wise in the long run for our society.
Second, laws are too important and have too wide-ranging an effect to simply be based on the will of the majority. That is one of the reasons that we have the Constitution and the courts to protect individual liberties from the tyranny of the majority. Some issues, such as who to marry, whether to have a baby, what religion to chose, what we read, etc, are generally protected from the will of the majority and the tide of public opinion.
This aspect of our system troubles many fundamentalist Christians. Based on their faith, they want the Congress and state legislators to make laws that effect many of these protected areas because as a matter of faith, they believe that certain conduct should be outlawed. For example, abortion. They believe abortion is murder, so therefore, there should be a law prohibiting it, just as there is a law against murder. The other side posits that the issue of abortion is ambiguous enough that it falls into a protected area, whether you call it the area of religious belief, or personal privacy of the women carrying the child. Therefore, the majority may not pass a law prohibiting it.
But how do you differentiate the difference between outlawing murder and abortion. Both involve a value judgment. It seems obvious that it is a lot clearer that Murder is wrong since almost no one would argue that murder is right. However, the ambiguity that I see in the abortion issue is truly unrecognizable to the faithful. They would argue that the rightness and wrongness of abortion is similarly clear. This is a huge conceptual problem.
How do we know when moral issues are ambiguous, or are matters of faith, or are issues that reasonable men can offer opposing opinions. Maybe its that we understand this intuitively, or “we know it when we see it.” Maybe we can?t set up standards to determine which issues should be within the sphere of protection from the majorities laws.
If one can honestly say that an issue is a matter of faith, even when that faith is unshakable, there must be some doubt for the faith to be truly religious. This was the teaching of the modern philosopher, Paul Tillich. Religion should encompass areas where we are unsure of the answer. Religion is used to fill in areas that cognitively we find ambiguous. For example, the issue of God is clearly a matter of faith and we must admit that there is some doubt as to the existence of God. By definition, God is the unknowable, he is beyond our ken, he represents areas of meaning that we cannot comprehend. If God were to come into our world, and scientifically prove her existence, then we would have to say, who created God and that entity would be our new God, that is, the unknowable.
When we accept this doubt, it puts the breaks on our desire to pass laws based on this faith. We understand that we must be very careful not to make others suffer as a result of a faith where doubt exists. For example, a woman who believes that abortion is permissible, should not be burdened with a child she has no emotional or physical means to support, and certainly the child should not be brought into this world to suffer the deprivation of a impoverished existence to satisfy the value judgment of other people of a different faith when that faith by definition has elements of doubt.
The 9/11 attackers are actually a similar group. Don’t be put off by this assertion. They lacked the requisite doubt in their faith. Therefore, believing they were absolutely right, based on their devout faith, they engaged in a war against American society, and, under our standards, committed murder. Under their standards, they engaged in a rightful act of faith in Allah. Their faith was so unshakable that they committed suicide. If they had recognized the element of doubt which is always a part of any religious belief, they might have held back on their suicidal and murderous actions.
Remember, it was God who told Abraham to sacrifice his own son as an act of faith. And, although the angels stopped Abraham and informed him that it was only a test, Abraham’s doubt did not keep him from planning the murder. His faith was unshakable. But, was Abraham right to plan the killing of his own son for God?
This sticky philosophical area does not present easy solutions. I only ask that people of faith understand that faith is a personal decision which comes from the heart and soul of each person. Laws, as Cooper asserted, should, if possible, respect the rights of the individuals in the minority and should not be a tyranny of the majority, whether they are based on faith or not. However, not every issue should be codified in the law, especially morally ambiguous issues, where personal certainty on that issue is based on faith.
All of this as a result of an exhibit at a rest area on the New Jersey Turnpike.