In a single bold stroke last week, the Supreme Court redefined what criminal defense should be. Ruling in the case of Padilla v. Kentucky, the justices held that a lawyer who failed to advise a client of the immigration consequences of a guilty plea in a marijuana case had rendered his client ineffective assistance of counsel. In other words, it's no longer enough for a criminal defense lawyer to just worry about the criminal charges a client is facing. The Padilla decision hands a big victory to the small cadre of public defender offices leading the movement to shift the nature of public defender work toward a more holistic model of client representation.
For the last decade, criminal representation at The Bronx Defenders has included counsel from full-time immigration attorneys. In addition to advising clients, our immigration staff attorneys educate prosecutors and judges about the immigration consequences of pleading guilty. While a small number of defender offices have done similar things, the sad truth is that in public defender offices across the country, criminal defense and civil immigration representation remain in silos, to the profound detriment of noncitizen clients.
The circumstances in a recent New York case perfectly illustrate the terrible problem with the current state of affairs at most public defender offices: A few winters ago, Jerry Lemaine was arrested for possessing a marijuana cigarette. His Legal Aid lawyer told him to plead guilty. Why not? The maximum penalty was a $100.00 fine. The problem: that plea--even though it was considered a non-criminal offense in New York State, rendered Mr. Lemaine deportable, initiating an odyssey that would leave him languishing in a federal immigration jail for nearly three years. Had his lawyer mentioned this as a possibility, it's likely, Mr. Lemaine would not have taken the deal.
Unfortunately, because of broken window policing and "tough on crime" legislation, Mr. Lemaine is the rule not the exception. The reality of today's criminal justice system is that the vast majority of criminal convictions are minor, while the consequences of those convictions are anything but. These days, even the most minor misdemeanor convictions can easily cost a defendant the right to live in this country. They can also trigger an eviction from public housing, elimination from public benefits, the denial of college financial aid, or the removal of children. Referred to as "invisible punishments" and "collateral consequences," they are enmeshed with criminal convictions and for many clients already living in poverty, these disastrous outcomes far outweigh the criminal charges they face.
As Mr. Lemaine's case illustrates, when hidden collateral consequences are introduced into the equation, a client's priorities can shift entirely. With holistic representation from a full cast of civil attorneys - specializing in immigration, employment, housing, and family law- our clients at The Bronx Defenders often make decisions that seem illogical in the criminal context, fighting cases even when it means staying in jail. Here's why: A single a plea to disorderly conduct will trigger a three year ban from New York City public housing, and two pleas to turnstile jumping can result in deportation.
However, holistic defense - or anything remotely resembling it - is still not mandated or funded by the government and most indigent clients take pleas from their court-appointed criminal defenders with no sense of the veiled sentences in store for them.
Padilla v. Kentucky was limited to immigration, but the Supreme Court has hastened a long overdue transformation of public defender offices around the country toward a more holistic and comprehensive model of representation.
Follow Robin Steinberg on Twitter: www.twitter.com/bronxdefenders
To say attorneys at The Bronx Defenders are interested in nothing more than "destablizing the Legal Aid Society" is just absurd and I am sure greatly insulting to them. To imply Ms. Steinberg is hiding from her past as a Legal Aid attorney is also ridiculous given it is posted on her bio on her office's website. Her "young attorneys" with Legal Aid's "young attorneys" every day. They do not compete nor do they have animosity towards each other. This political dialogue is not their concern nor is it what they take from the Padilla decision. They focus on fighting for the rights of the poor in a system disproportinately incarcerating the poor and people of color.
As public defenders we can choose to spar with each other, which helps nobody or we can do as Ms. Steinberg subtly states in her article - ask more from our government in regards to its treatment of the poor when liberty, housing, child custody, residency and work are in jeopardy.
My experience in New York public defense is admittedly limited, however, even I found this commentary fundamentally flawed. To make this into a catty competition between offices is to entirely miss the point of public defense to begin with. The previous comment highlights the unfortunate tendencies of some public defenders. It assumes that this article is about the defender instead of seeing what Ms. Steinberg is really focused on—the client. Ms. Steinberg understands what matters—it’s a shame that others chose to ignore it.
And believe me - those of us who have dealt with the organization The Bronx Defenders know what really matters to these non-union shops. The clients are not at the top of their priorities. The keep a small handful of experienced attorneys while running through young attorneys. They were formed after Giuliani's hatchet job on The Legal Aid Society and were designed to undercut The Legal Aid Society - which is a union office - ALAA and members of the UAW. They have consistently used their union to fight for funding, case caps, and a plethora of other changes in order to better represent indigent clients in criminal and civil issues.
Ms. Steinberg's organization and the other "alternate' providers have never had any interest in doing anything other than destabilizing The Legal Aid Society for their own interests. Their creation resulted in a dramatic rise in cases for all Legal Aid Society attorneys thereby making it more difficult for LAS attorneys to provide the representation necessary for their clients. Despite this, LAS continued to provide the "holistic" services that Ms. Steinberg refers to in her puff piece.
By definition, being a public defender does not serve one's own interests. You look bitter and angry when you make comments like that.
No matter how you feel about Ms. Steinberg or The Bronx Defenders, there are 125 people (I looked it up!) going to the court, representing clients, investigating cases, doing social workers, advocating for clients, advising about benefits, and working in the community. These people care about their surroundings. Read the article. I was incredibly impressed with it and immediately donated to their organization. Notice that she talks about an incredibly important issue, and the people who, I presume, are from Legal Aid are turning this into a cat fight.
I'm not sure what the problem is with having experienced attorneys, or a wealth of new attorneys who want to be public defenders. I don't know why you are slinging out insults. What I do know is that it reflects horribly on you and your organization. I had a goddaughter intern at The Bronx Defenders years ago, and she still talks about it with a gleam in her eye, even though it has been half a decade. She was beyond impressed with the work done by these people and it made her become the public defender she is today.
Her office is currently competing to be the primary defender against The Legal Aid Society - the same office that also provides the holistic services that she speaks of. Maybe these immigration concerns are new to her practice. They have been of concern and addressed by The Legal Aid Society for years - many years before her office even existed.
She knows better - her client base deserves more honesty and more collaboration. BNut that wouldn't serve her interests.