Former Anoka County district attorney Robert Johnson
If you think that real-life prosecutors resemble their ultracompetitive counterparts on TV, then most of my colleagues just might surprise you. Yes, we want to win convictions in the cases we try. But we also care about our ethical obligations to pursue justice and to promote the well-being of "society as a whole," a phrase that figures prominently in the National District Attorneys Association National Prosecution Standards.
That is why more than 20 other current and former federal, state and local prosecutors were driven to submit a friend-of-the-court brief in Chaidez v. U.S., a case that questions inequality in our justice system and was argued before the U.S. Supreme Court on November 1. While seemingly revolving around complex points of law, the case raises basic questions about American society and our system of justice:
Should defendants who pleaded guilty in the past because of ineffective counsel, particularly those facing permanent exile from their country and loved ones, have an opportunity to consider the immigration consequences before deciding to plea guilty? And will the nation's prosecutors be able to exercise discretion in cases so that we can ensure that the penalties are proportional to actual offenses?
These are among the underlying issues in Chaidez, which will determine how widely to apply the court's decision in an earlier case, Padilla v. Kentucky, that held that immigrants must be told of the immigration consequences before they plead guilty to a charge. The court reached this ruling on March 31, 2010, and the question in Chaidez is whether to apply this ruling retroactively to earlier convictions where the individual — like Jose Padilla — pleaded guilty without correct advice regarding the immigration consequences.
Make no mistake: This matters — enormously. When prosecutors negotiate a plea, we take into account what kind of punishment is fitting for the offense. For immigrants, including legal U.S. residents, even minor criminal cases can result in disastrous immigration law punishments of which the prosecutor and the defendant were unaware when they entered into the plea agreement. Noncitizens can be locked up in an immigration jail far from their homes for years, sometimes much longer than the sentence they risked in their criminal cases. They can be deported from the United States, even if they have suffered persecution in their country of origin and face a virtual death sentence upon return. They can be denied a right to see a judge and present their case in court.
No matter how many years they have spent in the United States, they can be forbidden from ever returning to their home and reuniting with their loved ones. These additional and more severe punishments have devastating impacts, often unintended by the criminal justice system, not only on the people facing deportation, but on their families and communities.
In one measure of the human toll of deportation, more than 46,000 parents of one or more U.S.-citizen children were removed from this country during the first half of fiscal 2011 alone, leaving these youngsters in single-parent homes — or, sometimes, in zero-parent homes. At least 5,100 children are currently in the nation's foster care system because their parents have been detained or deported.
For prosecutors, the ultimate unintended consequences are of great concern. We know that deporting breadwinners and parents undermines the economic stabilities of families and the safety of communities. Studies show that the children who have been left behind are significantly more likely to engage in behavior that is destructive not only to themselves but also to the communities that we are sworn to serve and protect. We have also seen how the unequal treatment of immigrants in the criminal justice system affects our ability to do our jobs by eroding trust in the communities we count on for assistance. By providing that the nation's standards of justice also apply to cases decided before March 31, 2010, a favorable decision in Chaidez will give prosecutors the option, if they desire, to revisit plea agreements that failed to achieve justice the first time around.
We need not fear that courts will be flooded with illegitimate claims of ineffective assistance of attorneys for their immigrant clients. Prosecutors and the courts have many tools by which we can dispose of meritless cases. While there are cases in which a prosecutor may believe deportation is appropriate, providing a remedy for those whose pleas were unknowingly made does not undermine those cases. Prosecutors' obligation to do justice does not end once we obtain a conviction; it is not a burden on us to be able to do justice when the system has failed defendants in the past.
As a prosecutor, I never forget the words etched in marble on so many of our courthouses: "Equal Justice for All." Ultimately, Chaidez is about two simple truths. Those inscriptions don't declare, "Equal Justice for All, Except Immigrants." And they don't say, "Except in cases decided before 2010."
Robert Johnson served as Anoka County, Minn., attorney from 1983 through 2010 and is a past president of the National District Attorneys Association and the Minnesota County Attorneys Association.
