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COPYRIGHT 2007 Stanford Law School
INTRODUCTION
I. A BRIEF OVERVIEW OF CRIMINAL DEPORTATION IN THE UNITED STATES A. The Evolution of American Deportation Law B. Modern Trends in Criminal Deportation II. CALIFORNIA PENAL CODE SECTION 1016.5 III. CALIFORNIA PENAL CODE SECTION 1016.5 IN PRACTICE A. Recent California Supreme Court Cases Interpreting Section 1016.5 B. Missing Plea Hearing Transcripts: A Problem of Proof IV. IMPROVING THE SECTION 1016.5 REGIME A. The Case for Reform B. Suggested Improvements 1. Record retention 2. Prosecutorial discretion 3. Procedural improvements a. Increasing the burden of proof b. Evidentiary hearings and cross examination CONCLUSION
INTRODUCTION
Imagine the following scenario. Smith invites Jones to live as a boarder in his spacious home upon the condition that Jones will pay his share, keep up his end of the chores, and abide by the rules of the household. Jones is thrilled to have found such a nice place to live and signs the lease without a moment's hesitation. For a time, things go well; domestic affairs run smoothly. Then, one day, Jones steals the toaster oven from the kitchen and sells it for some extra cash. Smith wakes up the next morning hungry for a toasted English muffin only to find the appliance gone. He calls a house meeting where he confronts Jones, but Jones is evasive. Smith tells him that if he confesses to the theft, he will simply have to pay back the household for the toaster. Eventually, Jones confesses and buys a new toaster oven for the house. Time passes, and although things in the house are tense for a while after Jones's indiscretion, he goes on to become a model housemate. When he gets married, his new wife moves into the house with Smith's blessing. They have a baby girl, and Jones adds a nursery to the east wing of the house at his own expense.
Twelve years later, on a Tuesday afternoon like any other, Smith calls a house meeting. He tells Jones politely but firmly that he is being kicked out of the house. Caught off guard and with nowhere else to go, Jones asks what he has done to deserve eviction. Smith asks Jones if he remembers the toaster he swiped a dozen years ago. Jones says he does, but only vaguely. "I told you at the time that you had violated the house rules and it was grounds for eviction," says Smith. "I've let this slide for a while because I've been busy. But time's up. Be out by Friday." Jones says he doesn't recall hearing about that provision of the lease, and, had he known, he never would have admitted to the theft. Smith admits that while he doesn't recall exactly what he told Jones at the house meeting, he is sure he would have reminded Jones about the possibility of eviction. In any case, he says, it doesn't matter. The lease says what it says and Jones must get out. His wife and kids, however, have done nothing wrong and can stay if they wish, although Jones will never be allowed past the driveway, even for a visit. Desperate for a reprieve, Jones remembers that Smith takes meticulous notes of house meetings, in case of future legal troubles. "Let's see the notes from twelve years ago!" he shouts. "If you didn't tell me about this eviction business, I should get to stay." Smith responds, "That's a fine idea, but be serious. I can't be expected to keep notes for so long. I shredded them last August." As Jones takes in the gravity of his situation, Smith calls the house meeting to a close. "I feel for you, Jones. But you just don't steal your landlord's toaster."
Simplified as it may be, the above scenario fairly depicts the state of many criminal deportations under current U.S. immigration law. Of course, there is nothing novel or surprising about the fact that states deport noncitizens who have committed crimes. Criminal deportation has legitimate justifications including deterrence, retribution, incapacitation, and even a desire to bolster public support for immigration more generally. (1) But theory is different from practice. In practical application, significant problems and inefficiencies arise as the immigration system interacts with the criminal justice system. Indeed, in discussing the two bureaucracies some observers have noted wryly, "One system is profoundly troubled; the other is a disaster. Criminal defense lawyers and immigration attorneys might disagree about which system deserves which label." (2)
Problems in the two systems affect an increasing number of people; the sheer number of criminal deportations has exploded in the past two decades. In 1980, fewer than 500 of an estimated 31,000 deportable noncitizens were actually removed from the United States on criminal grounds. (3) By 2001, this number reached approximately 70,000. (4) After the attacks of September 11, 2001, the efficiency of the deportation system has become a renewed priority. With the passage of the USA PATRIOT Act and the reorganization of the Immigration and Naturalization Service (INS) into Immigration and Customs Enforcement (ICE), the number of criminal deportations is expected to rise further. (5) Indeed, according to the U.S. Department of Homeland Security, 89,406 criminal aliens were deported in 2005, seventy-seven percent of whom were returned to Mexico. (6) As the figures grow, however, it is important to remember that each deportation has life-changing implications for the individual immigrant and, in many cases, his family. It is therefore imperative that the system function fairly as well as efficiently.
A complete catalogue of the problems inherent in the criminal alien deportation system is beyond the scope of this Comment, which will focus on one relatively overlooked aspect of the system: statutory requirements to warn noncitizen criminal defendants of the immigration consequences of their crimes before the acceptance of a guilty plea. Although neither the U.S. Constitution nor the Federal Rules of Criminal Procedure require such a warning, (7) California, along with twenty other states, has enacted a law requiring state courts to inform noncitizen defendants that a guilty plea may subject them to adverse immigration consequences such as deportation, exclusion, and denial of naturalization. (8) This Comment will examine how this statute, section 1016.5 of the California Penal Code, operates in practice.
Part I will briefly lay out the history of federal criminal deportation laws, emphasizing the increasingly harsh immigration consequences of criminal convictions for noncitizens. Part II will explain the origins, purpose, and basic requirements of California's Penal Code section 1016.5. Part III will explore how California courts have interpreted section 1016.5. In particular, this section will focus on the unfortunate interaction between Penal Code section 1016.5 and an obscure provision of the California Government Code, section 68152, which provides for the routine destruction of court reporter transcripts after a period of ten years. The result is a serious evidentiary problem that chips away at a system already notorious for the harshness of its penalties and the dwindling options for relief. Part IV will present the case for reforming the legal regime surrounding section 1016.5 and offer suggestions for improvement.
I. A BRIEF OVERVIEW OF CRIMINAL DEPORTATION IN THE UNITED STATES
To place California's statutory regime in context, this Part will chronicle the history, evolution, and purposes of federal immigration law as it pertains to criminal deportation. Criminal deportation in the United States reaches back to the nation's inception and is embedded in international customary law. Over time, haphazard congressional attempts to deport criminal aliens have evolved into an efficient and sophisticated system with few exceptions and fewer options for relief.
A. The Evolution of American Deportation Law
The right of the United States government to deport aliens who have committed criminal acts inside U.S. territory has a long and essentially unchallenged pedigree. (9) Early laws focused on the exclusion of certain aliens from the United States, a practice the Supreme Court formally endorsed by upholding the Chinese Exclusion Act in Chae Chan Ping v. United States in 1889. (10) Congress soon turned its attention to deportation and applied the practice more broadly. (11) But deportation did not become firmly embedded in the legal fabric of American law until the Supreme Court decided Fong Yue Ting v. United States in 1893. (12) In that case, the Court upheld a law allowing the deportation of any Chinese laborer who had failed to obtain a certificate of registration within a year of arrival. A majority of the Court held that "[t]he right to exclude or to expel all aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, [is] an inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence and its welfare...." (13)
Congress attempted to make a coherent whole out of its previous piecemeal efforts at immigration law in the Immigration Act of 1917, marking the beginning of the merger between state criminal law and federal deportation law that remains with us today. The law allowed for the deportation of "any alien who is hereafter sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, committed at any time after entry." (14) The Act expanded the list of deportable aliens to include anarchists and those advocating the overthrow of the U.S. government. Narcotics violations, now the primary driver of criminal deportation proceedings, (15) were added to the list of deportable offenses in 1931. The law allowed deportation of "any alien except an addict, if not a dealer or peddler who shall violate or conspire to violate" any federal narcotics law regarding "opium, coca leaves, [and] heroin." (16)
At about the same time, criminal alien deportation began to enter into public political discourse, and local governments started to make deporting criminal aliens a priority. President Hoover used his message to Congress on December 2, 1930 to call for "strengthening our deportation laws so as to more fully rid ourselves of criminal aliens." (17) Late that same year, New York City added a special bureau to its police department "to round up and investigate all aliens with criminal records to establish possible grounds for deportation." (18) The bureau's work was in part "retroactive," turning over information about criminal aliens "charged with felonies during the past five years" to the U.S. Immigration Commission for action. (19)
B. Modern Trends in Criminal Deportation
Congress passed the Immigration and Nationality Act (INA) in 1952, setting up a statutory framework for the exclusion, admission, and removal of aliens that forms the basis of today's immigration law. (20) The sweeping purpose of the law was "to enact a comprehensive, revised immigration, naturalization, and nationality code." (21) Echoing the Supreme Court's decisions in Chae Chan Ping and Fong Yue Ting, Congress explained that "[i]t has been repeatedly held that the right to exclude or to expel all aliens or any class of aliens, absolutely or upon certain conditions, in war or in peace, is an inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence, and its welfare." (22)
Under the original INA, any crime of "moral turpitude" (a term not defined in the Act) could lead to deportation if it led to imprisonment for a year or more and occurred within five years of admission. (23) Two such convictions committed at any time after admission would also lead to deportation. (24) Over the decades, the INA's prohibition on criminal aliens has expanded dramatically. In 1988, the Act was amended to reach aliens convicted of an "aggravated felony," a term which has also expanded over time. (25) What first applied to murder, drug trafficking, and weapons trafficking has expanded to include money laundering, child pornography, and a multitude of other "crimes of violence." (26)
The most dramatic expansion of the INA occurred in 1996 with the passage of the Antiterrorism and Effective Death Penalty Act (AEDPA) (27) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). (28) These recent developments are well documented. (29) Suffice it to say that the immigration consequences for a wide variety of criminal offenses have become extremely harsh, with very little possibility of relief. The list of "aggravated felonies" includes many garden variety state law crimes, including theft and domestic violence charges. (30) Any drug conviction renders an alien deportable, with the sole exception of "a single offense involving possession for one's own use of 30 grams or less of marijuana." (31) A suspended sentence counts as a term of imprisonment and renders the convicted alien deportable, even if the alien never serves a moment of his sentence. (32) But the most striking feature of modern immigration law is the near total elimination of discretionary relief for aliens convicted of aggravated felonies. (33) The result is that "[d]eportation is virtually assured following conviction for an aggravated felony because aggravated felons are precluded from seeking almost every form of discretionary relief, such as cancellation of removal." (34)
In sum, criminal deportation in the United States has seen a steady expansion from simple exclusion to the rise of a highly effective system devoted to the removal of nearly 100,000 criminal aliens from our shores each year. As these...
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