The “ordinary” case’s demise in criminal sentencing & its implications for immigration law

By Linus Chan When Congress passed the Armed Career Criminal Act (ACCA) of 1984, federal courts needed to systematically decide what state convictions required sentencing enhancements designed to punish not only “habitual criminals” but “violent” offenders as well with higher sentences. Congress, however, didn’t define what makes for a violent offense and the lower courts were torn: did Congress mean for state law to govern or was a uniform, nationwide definition to apply? In 1990, the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990), decided that a uniform definition was [...]

Will PEP lead to less detention than Secure Communities? Not likely

By Patricia M. Corrales Secure Communities, Priority Enforcement Program, Potato, Potatoe...What’s the difference? The shortest answer is “none.” The controversial Secure Communities program together with ICE’s 287(g) program, established under the Bush Administration and directly administered by former Attorney General Alberto Gonzales, came to an end under Obama’s executive action initiative on immigration announced on November 21, 2014. In its place, Secretary of Homeland Security Jeh C. Johnson announced the Department of Homeland Security’s (“DHS”) new Priority Enforcement Program [...]

Prison reform’s blind spot

By visiting a federal prison last week—the first time a sitting president has ever crossed the barbed wire threshold—President Obama amplified calls for prison reform like few others could do. His televised walk through the El Reno penitentiary illustrated the stark reality millions of people live in jails and prisons throughout the United States. Standing in front of a long row of cell doors, the President’s honest assessment of his own youthful drug use—and his vocalized assumption that many of the reporters in the press pool probably share similar criminal pasts—was a refreshing reminder [...]

WI Supreme Court guts Padilla v. Kentucky

In two cases released the same day, the Wisconsin Supreme Court made it much more difficult for migrants to demand the effective assistance of counsel that the Sixth Amendment entitles them and all defendants in criminal prosecutions to receive. See Padilla v. Kentucky, 559 U.S. 356 (2010). In the process, the court revealed serious misunderstandings of constitutional law and a subtle but perceptible inclination toward rightwing legal claims credited by federal judge Andrew Hanen who presided over major attacks against President Obama’s immigration executive actions. Both decisions begin [...]

7 Cir: Migrant defendants entitled to roll the dice with a jury

Migrants facing criminal prosecution can turn down a plea offer and elect to go to trial no matter how good the plea deal, the U.S. Court of Appeals explained recently. DeBartolo v. United States, No. 14-3579, slip op. (7th Cir. June 26, 2015). Any ineffective assistance of counsel suffered along the way isn’t absolved simply because they turned down a perfectly good plea offer. This case involved an Italian citizen with a string of low-level drug convictions. His last eventually resulted in his deportation. Along the way, however, he was denied the competent legal counsel required by the [...]

The Power of 1000: Updates from the Nation’s First Immigration Public Defender

By Andrea Saenz The nation’s first public defender system for detained immigrants facing deportation, the New York Immigrant Family Unity Project (NYIFUP), recently marked an important milestone unimaginable just a few years ago: representing over 1000 clients since opening its doors as a pilot project in 2013. That’s 1000 New Yorkers and their families who would have faced permanent separation for no reason except their inability to afford counsel. Instead, they entered court with an outstanding lawyer by their side, courtesy of the NYIFUP service providers: the Bronx Defenders, Brooklyn [...]

Migrants, detainers, & sanctuary cities

The unfortunate death of thirty-two year old Kathryn Steinle in San Francisco allegedly at the hands of a man lacking permission to be in the United States has reignited old refrains about migrant illegality and border insecurity. Coming on the heels of Republican presidential nominee Donald Trump’s infamous claims that many Mexican migrants are rapists or drug dealers, this sad affair has thrown political commentators and politicians into a tizzy about migrant criminality. As could be expected, Republicans have jumped on this event, the facts of which remain very unclear, to repeat their [...]

PEP vs. Secure Communities

Last November, Secretary of Homeland Security Jeh Johnson announced the end of the Secure Communities program. Beloved by the Obama Administration, Secure Communities (often described simply as S-Comm) came under heavy criticism by advocates, state and local lawmakers, and police officials. Whatever victory advocates could celebrate was short lived. In the same memo in which Johnson announced S-Comm’s demise, he added that DHS would replace it with a new initiative called the Priority Enforcement Program (PEP). Since then advocates and scholars have been trying to figure out how PEP differs [...]