The Supreme Court just concluded its Term with blockbuster decisions on affirmative action, free speech, and student loan forgiveness. But criminal law practitioners should be aware of a less-ballyhooed case that is significant for its broad pronouncements about the discretion of police and prosecutors. The case is United States v. Texas. This post summarizes the decision and places it in context of the ongoing national debate about discretionary decisions concerning arrest and prosecution.
immigration
Habeas Relief for Immigration Detainers Gets Put on Ice
Last Monday, North Carolina’s newly-elected sheriffs were sworn into office. A key issue in several of the campaigns was whether the candidates would or would not continue to cooperate with federal immigration enforcement. Incoming Sheriff Garry McFadden announced that he will be ending Mecklenburg County’s participation in the U.S. Immigration and Customs Enforcement (ICE) “287(g) program.” Incoming Sheriff Gerald Baker in Wake County likewise pledged to end his office’s participation in the 287(g) program, and incoming Sheriff Clarence Birkhead in Durham County announced that his office would no longer honor any “detainer requests” from ICE.
Coincidentally, on the same day that those elections were being held, the Court of Appeals decided Chavez v. Carmichael, __ N.C. App. __ (Nov. 6, 2018), which analyzed whether a defendant can challenge immigration detainers in state court on habeas corpus grounds. In addition to answering that central question, the Chavez decision also helps to clarify the sometimes-overlooked distinction between the 287(g) program as a whole and ICE detainers in particular, and it points out an important statutory limitation on the extent to which custodial law enforcement agencies may “decline to investigate” the immigration or residency status of a person in custody.
New Resource on Immigration Consequences of a Criminal Conviction
I am excited to announce the release of the 2017 edition of our manual, specific to North Carolina law and practice, on the immigration consequences of a criminal conviction. We hope that this online manual, which can be viewed at no charge, will be a useful resource in understanding this challenging area of law.
Immigration Detainers
Sometimes, after a defendant has been arrested for a crime, an Immigration and Customs Enforcement (ICE) officer will file an immigration detainer with the agency that has custody of the defendant. The detainer asks the agency to notify ICE when the defendant would otherwise be eligible for release — for example, because the defendant has posted bond, or because the charges against the defendant have been dismissed — and to hold the defendant for up to 48 hours thereafter to enable ICE to take custody of the defendant. I have often wondered about the authority for holding a defendant pursuant to such a detainer. Recent developments indicate that courts are increasingly wondering about that too.
Should Prosecutors Consider Collateral Consequences?
Prosecutors have wide discretion to decide how to charge defendants. In exercising that discretion, a prosecutor certainly may consider the sentence associated with each possible charge, and may choose to pursue the charge or charges that is most likely to result in the outcome that the prosecutor sees as just. But the criminal sentence may not be the only outcome of a criminal case. A variety of collateral consequences may be imposed by law, such a change in immigration status, a requirement to register as a sex offender, or loss of professional licensure. Other consequences may also follow certain convictions, such as loss of employment or housing. May prosecutors consider collateral consequences when making charging decisions and when evaluating possible plea bargains? Should they do so? Must they?
Padilla Comes to North Carolina
The title I gave this post is actually not quite accurate. Five years ago, in its 2010 decision in Padilla v. Kentucky, 559 U.S. 356 (2010), the U.S. Supreme Court established that criminal defense attorneys have an obligation, as part of the Sixth Amendment guarantee of effective assistance of counsel, to advise noncitizen clients about the immigration consequences of the criminal charges against them. In its recent decision in State v. Nkiam, ___ N.C. App. ___ (Nov. 3, 2015), temp. stay allowed, ___ N.C. ___ (Nov. 23, 2015), the North Carolina Court of Appeals found that the defendant’s counsel failed to meet this obligation. Although Nkiam seems like a straightforward application of Padilla, it has caught people’s attention because it is the first North Carolina appellate decision to address the merits of a Padilla claim of ineffective assistance of counsel. (In previous cases, the North Carolina Court of Appeals found it unnecessary to address the merits of the defendant’s claim, holding that Padilla did not apply retroactively and did not afford relief to a person whose conviction was final before Padilla was decided. State v. Alshaif, 219 N.C. App. 162 (2012); accord Chaidez v. United States, ___ U.S. ___, 133 S. Ct. 1103 (2012).)
Pretrial Release – Part 4: Refusal to Provide Identification & Noncitizens
In the last in this series of posts on pretrial release I’ll address two issues that continue to create problems for judicial officials: defendants who refuse to identify themselves and setting conditions for noncitizens. Defendants Who Refuse to Identify Themselves Sometimes defendants refuse to identify themselves. Without knowing a defendant’s identity, it is almost impossible … Read more
Is Padilla Retroactive?
In a post here [editor’s note: the post shows up with my picture for technical reasons, but it was written by Sejal Zota], a former colleague discussed Padilla v. Kentucky, 130 S. Ct. 1473 (Mar. 31, 2010), a U.S. Supreme Court decision dealing with ineffective assistance of counsel in connection with advice regarding the immigration … Read more
H33 and North Carolina Driver’s License Requirements
The State House of Representatives recently passed H 33, “An Act to Provide that Certain Consulate or Embassy Documents May Not be Used to Determine a Person’s Identification or Residence for Governmental and Law Enforcement Purposes.” Among the provisions the bill would amend if enacted is G.S. 20-7(b4), which currently permits the North Carolina Division … Read more
News Roundup
I’ve been busy with New Prosecutors’ School this week. Working on the course, which we co-sponsor with the Conference of District Attorneys, is one of the best parts of my job. I’m always inspired by the enthusiasm, dedication, and professionalism of the assistant district attorneys who attend the school. Even though my full attention has … Read more