Does The Punishment Fit The Crime?

She sat in the courthouse, waiting to pay off a traffic ticket, watching the nervous hustle around her. Courthouses are strange places of emotional extremes: people shifting their weight nervously, crying tears of joy or rage or despair, hugging family members, attorneys. Quick, hushed conversations – supposedly privileged, but had out in the open – that can decide a family's fate for years to come.

She felt impatient, but relieved that her task was mundane compared to the cacophony around her. In a few minutes she'd be done and on her merry way.

Suddenly, unfamiliar uniformed police officers called her name.

“Yes?” she answered nervously. She had a criminal record. A dangerous one: she had stole a purse. But she did her time – suspended time, meaning she didn't actually have to go to jail because the crime, wrong as it was, was minor. Punishment should fit the crime, of course. Justice was served. And besides, she was done, the case was over. She paid her debt to society. Wasn't there something she had heard about double jeopardy?

The next several seconds were life-altering. Immigration officers began a process that would result in her incarceration for over a year, losing her green card, and her subsequent deportation to a country that she barely remembered. Shortly thereafter, the law would change and the crime of shoplifting that she paid for – twice – no longer was a basis for her mandatory deportation. But too late for her dreams of nursing school, or even a last Christmas with family.

Did the punishment fit the crime?

Welcome to the tangled web of crimmigration – the immigration consequences of criminal activity. (Yes, it's a real field of law, one in which I've practiced for over 10 years.) This is what you get when two vastly different bodies of law collide and are then meshed together, as if they were supposed to.

Criminal law starts with the presumption of innocence, because we recognize that we don't take away someone's liberty without good reason: beyond a reasonable doubt. Deportation law starts with the presumption of “guilt” - ineligibility to remain in the US, unless there is a form of relief. Criminal law guarantees a lawyer, paid for by the government if necessary, because the stakes are high and the law is complex. There is no public immigration defender, even though frequently, the stakes are even higher. Criminal law grants the right to a speedy trial. No such right exists in immigration court. We have juries in criminal court. We even have juries in civil court, to decide things like breaches of contract. But there are no juries in immigration court.

Oil and water. I fought for her. I noted that she was given the wrong advice about the immigration consequences when she pled – the transcripts proved it. Had she gotten the right advice, it would have been possible to reduce her suspended sentence by one day, and she would have been eligible to save her green card. I appealed her case all the way to the state supreme court, but they ruled the error wasn't big enough to warrant a reversal.

Our immigration law is plagued with a horrendously bad idea: that people can be illegal and hence disposed of, like so much trash, regardless of their equities. Sure, some people absolutely deserve to be banished from the country. But as crimmigration law evolved, it became more rigid. Judges used to have the power to stop a deportation where such banishment would result in a miscarriage of justice. Since 1990, they no longer have that power. In 1996, President Clinton signed a law that, among other things, made it much easier for immigrants to be deported – mandatorily – for increasingly minor crimes. The trend has continued since.

Why should we care? Because if we truly are a country of laws, we must ensure that punishments fit the crimes. When detention (read: incarceration) and deportation become easy, we begin meting out criminal punishments without corresponding constitutional safeguards. That is an affront to the rule of law, not an example of it.

The right to tell one's story is the heart of due process. When it is lacking, we all suffer. Incredulously, some argue that countries like Saudi Arabia deport people with impunity. Is that the standard to which we aspire? I swore an oath as an attorney to uphold the Constitution of the United States. In that document are the words “No person shall ... be deprived of life, liberty, or property, without due process of law.” The Fifth Amendment applies to everyone in the United States. There is no citizenship requirement, because we are a country of both Americans and aspiring Americans.

​I don't know what became of my client. I hope she is well and prospering wherever she is.

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