From a prison library in Florida, Clarence Gideon sent handwritten notes to lawyers arguing that his Constitutional rights has been violated when he was denied an attorney in the trial where he was convicted of breaking into a pool hall.
Eventually Gideon's case rose to the Supreme Court. In a landmark 1963 decision, the court ruled in Gideon v. Wainwright that defendants have the Constitutional right to be provided with a lawyer if they are too poor to hire their own. Gideon was given a new trial where he was assigned a lawyer, and he was acquitted after one hour of jury deliberations.
Over five decades later, a robust public-defender service has developed, which guarantees that all defendants will be represented by a lawyer in court. There are serious deficiencies in the system — lawyers who are drunk or sleeping during trial are not unheard of. But it ensures that citizens have a representative when the state brings criminal charges against them.
Non-citizens have no such guarantee. Those who are caught up in the immigration system are not provided with access to lawyer. Because deportation is not considered a criminal sentence, there is no right to counsel for those in removal proceedings. They can have representation, but only if the lawyer is provided “at no expense to the government.”
Many immigrants lacks the means to hire their own attorneys, so a large number navigate their deportation cases without any legal assistance.
After he was tired of seeing these non-citizens coming into his court without legal representation, Robert Katzmann, a federal judge on the Second Circuit Court of Appeals, commissioned a study that highlighted the plight of these unrepresented non-citizens in their deportation hearings.
The son of immigrants who fled Nazi Germany and Russia, Katzmann brought together a group of lawyers and activists to push for greater representation of those marginalized in our justice system.
Immigrants with legal representation are five times more likely to win their cases, but in New York only 40 percent of detainees have lawyers, according to Katzmann’s study.
The lack of access to counsel has even affected American citizens who have been caught in the immigration system.
Mark Lyttle, a U.S. citizen with mental disabilities, was deported to Mexico after he was arrested. Lyttle produced evidence of his American citizenship but after spending fifty-one days in detention he was pushed across the Mexican border with only three dollars.
He spent months sleeping in shelters and making his way across Central America before a consular officer confirmed his citizenship by simply calling his brother, who was in the U.S. military.
Lyttle’s tale is devastating but he is not alone; the U.S. has deported other U.S. citizens who, like non-citizens, can go through the deportation proceeding without any legal representation.
Judge Katzmann's efforts have yielded the Immigrant Justice Corps, a group dedicated to assisting detainees in the legal system. This is an important step in ensuring that detainees have representation, but it’s not enough.
As the Congress once again moves to consider comprehensive immigration reform, it should fulfill the promise of Gideon and establish a service to provide representation to non-citizens in deportation hearings.
A Democratic congressman from Florida, Ted Deutch, is taking brave steps to begin to change our immigration system.
The grandson of Jewish immigrants from Russia, Deutch has introduced the Immigrant Detainee Legal Rights Act. The bill makes an important step in promoting the use of legal orientation programs in all detention centers, which would be a vast improvement over their placement in only a few dozen facilities.
The centers would inform the detainees of their legal rights and help them to navigate the process surrounding their detention and potential deportation. Ultimately, this is a good investment.
“Keeping immigrants in the dark about their legal rights increases the burden on our backlogged immigration courts and leads to longer stays in detention centers that are already hugely expensive to taxpayers,” Deutch explained in a statement.
The Bush administration’s Department of Justice found that immigrants who have access to a legal orientation program “have fewer court hearings and spend less time in detention.”
The immigration system is backlogged and broken and every day immigrants are bearing the brunt of that burden. The Supreme Court stood up in Gideon to ensure that those in the criminal justice system had access to representation. Today we need Congress to stand up and support a policy of ensuring immigrant access to legal guidance.
Sam Kleiner is a fellow at the Yale Law Information Society Project.