The Nevada Supreme Court Oct. 30 joined courts in other jurisdictions that have ruled that criminal defense attorneys’ affirmative misrepresentation of the immigration consequences of a client’s guilty plea may constitute ineffective assistance of counsel that renders the plea involuntary (Rubio v. State, Nev., No. 48459, 10/30/08).

The defendant in this case, a permanent resident living with her husband and her four U.S. citizen children, was facing an assault charge. She spoke only rudimentary English. Presented with an English language pretrial agreement, her counsel left her with a Spanish-speaking interpreter to review the agreement, which included a section warning of possible immigration consequences. The defendant pleaded guilty but later sought to withdraw the plea when she was taken into custody by federal immigration authorities looking to deport her. The defendant claimed that her lawyer did not discuss the agreement with her and that the interpreter did not cover the immigration subject other than to say that if she had her “papers” she would be all right. She was denied relief below.

In a per curiam opinion, the court acknowledged and stood by its holding in a previous case that deportation is a “collateral consequence” that does not affect the voluntariness of a guilty plea. However, the court pointed out that its previous case did not address situations in which counsel does not merely fail to discuss the immigration consequences of pleading guilty but affirmatively misrepresents what they are. “Perhaps understanding the harshness of deportation, a growing number of jurisdictions have adopted the affirmative misrepresentation exception to the collateral consequence rule,” the court said, citing United States v. Kwan, 407 F.3d 1005, 21 Law. Man. Prof. Conduct 278 (9th Cir. 2005). Agreeing with the reasoning of those other courts, it held that “affirmative misadvice regarding immigration consequences may constitute ineffective assistance of counsel and support withdrawal of a guilty plea as involuntarily entered.”

The court refused to extend this rule to cases in which court interpreters give bad advice, however. The defendant never claimed that her counsel misled her, the court noted; rather, she claimed that she thought the interpreter worked for the court and could render legal advice. Accordingly, the court said the defendant could not avail herself of the rule it announced.

US To Speed Deportation Of Criminals In Jail, NY Times (US), January 15, 2008

Get Advice Before Entering A Plea, NY Daily News (NY), February 12, 2008.

NY Times Article: In light of the costs associated with the growing level of incarceration, the Pew Center on the States recommends “diverting nonviolent offenders away from prison and using punishments short of reincarceration for minor or technical violations of probation or parole. It also urged states to consider earlier release of some prisoners.”  Click here to read more.

New York Law Journal Article: A Watertown City Judge has ruled that a court has a duty to ensure that defendants who plead guilty to violations have a “full understanding” that their conviction history might be available to the public.  Click here to read more; Click here to read the opinion.

New York Times Feature: Description of the effects of high incarceration rates among particularly troubled neighborhoods.  Click here to read more.

H.R.:1593 Second Chance Act of 2007 – the Second Chance Act reauthorizes the grant program for reentry of offenders into the community in the Omnibus Crime Control and Safe Streets Act of 1968, and improves reentry planning and implementation.  This bill passed in the House of Representatives by roll call vote on November 13, 2007.  Click here to read more.

Washington Post Article: CDC report concludes that youths who are tried as adults and housed in adult prisons experience higher rates of recidivism and commit more violent crimes than do minors who remain in the juvenile justice system.  Click here to read more.

January 1st, 2007Run-On Sentences

ABA, others focus on easing the added punishments for those convicted of crimes: “At the 2003 ABA annual meeting, U.S. Supreme Court Justice Anthony M. Kennedy gave an influential speech that questioned the effectiveness of sentencing policies and prisons in the United States.  Soon afterward, then-ABA President Dennis W. Archer of Detroit formed the Justice Kennedy Commission to study issues relating to prisons and sentencing. In 2004, the House of Delegates approved a recommendation by the commission that called for procedures that would allow offenders who have served sentences to request restoration of their legal rights and relief from other collateral consequences.”  Click here to read more.

New York Times Article: The U.S. Supreme Court held that non-citizens cannot automatically be deported when they are convicted of drugs crimes which are felonies under state law but misdemeanors under federal law. Click here to read more


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