Saturday, May 8, 2010


NYLJ 6-11-07


1. The song comes to mind, if little more than the lilting refrain: “You got me caught between/the Devil and the Deep Blue Sea.”

The state of the immigrant is tenuous, at best, and an illegal non-existent, when facing felony drug abuse charges. Having pled guilty to an offense in order to enter a treatment program, which includes community and domestic violence and mental health/therapy courses, is to truly enter into the court of last resort. After this, upon conviction, is prison, no question. But the lingering threat as well, and one which is unvoiced, is the possibility of deportation.

The Deputy Chief Administrative Judge’s position is that the guilty plea at the outset is crucial to the treatment regimen, ensuring that the defendant’s know the consequences of walking out or otherwise refusing to cooperate with the program. And that the cases are usually dismissed once the treatment has been successfully completed is also a potent spur towards the model.

The Special Narcotics Prosecutor takes exception to the recommendations of the report, citing no known cases where participants who plead guilty were deported. However, the supervisor of the Immigrant Defense Project said she’d handled two case where Homeland Security had leveled the threat.

The Rockland County DA added his support of the model with more practical concerns. “Many defendant’s are in treatment programs for one or two years and the passage of time is very detrimental to the prosecution.” From that angle—the actual job to be done by his office—can’t be argued with: if a defendant drops out down the line, then witnesses are more difficult to find and their memories may have faded as well. Add to that the starting up of a case again, with arresting officers and calendaring and adding in the up-to-speed need for new ADA’s and you’ve got cost as well. Also, it is “not very victim-friendly”. It may be that the standard version of drug offenses is that they harm themselves the most, but wives and lovers and children? That changes whatever compassion one might have for a disturbed defendant, and allows for the possibility of stalking or other predator moves.

Nope. The guilty plea looks best, but some alternatives are being floated, such as allowing DA’s and judges to use their own discretion. That it has been found that a number of judges actually failed to inform defendants of their exposure to the deportation possibility has been noted as well. One might think this would be grounds for a misconduct suit but Criminal Procedure Law Section 220.50(7) explicitly states that the absence of a warning shall not be ground for invalidating a plea.

So, perhaps, as the Brooklyn DA’s office has been experimenting with—taking a confession of judgment, without the consequences of 8 USC section 1101(a)(48)(A)—a method to take La Migra out of the loop, there are creative alternatives being offered. And even allowing judges more latitude and discretion in taking pleas—shall we call it longitude as well?

Which would put a lot more Deep Blue Sea out there, and possibly less Devil.

No comments:

Post a Comment