The Trump administration announced earlier this week new directives on deportation of undocumented immigrants, unleashing the full force and fury of the Federal government to find, arrest and deport aliens who have been convicted of all levels of crime. While the Obama administration has deported more undocumented immigrants than previous administrations, it has only deported those convicted of “Serious crimes” – that has been traditionally defined as felonies. These new directives would call for the swift deportation of those convicted of misdemeanors such as shoplifting, DWI and aggravated unlicensed operation of a motor vehicle.
One unintended consequence of the new deportation rules may very well be that more undocumented immigrants charged with crimes will take their cases to trial to avoid these new harsh consequences of a conviction. Plea-bargaining is the grease that keeps the wheels of the criminal justice system operating. All stakeholders in the system need plea-bargaining as neither the courts, nor the District Attorneys’ offices, nor the defense bar have the capacity and resources to try a significant portion of the criminal case docket. Currently, about 97% of Federal cases and 94% of State cases end in plea bargains. While the scenario laid out by the Trump Administration of swarms of illegal immigrants committing crimes in the US is simply not borne out by the facts (see this reportfrom the Pew Research Center), there are enough of this class of defendants on court dockets in NY State and around the country that a significant uptick in trials by them would present a daunting problem.
Already in NY, it can take years for a felony case to go to trial. In the Bronx, some folks are waiting over three years for their day in court. Just an increase of 5% of cases going to trial would push the system to the breaking point. But why would an illegal immigrant – whose family and livelihood are here in this country and have been in this country for decades perhaps – take a plea bargain if he or she knew that they would be shipped to a detention center far from home and then planted back in a country they now know very little about. They might as well take their shot at trial. This is especially true in misdemeanor cases where the maximum jail sentence is a year and where cases generally come to trial quicker. In misdemeanor cases in NY the State has to get he case ready for trial within 90 days. While this time frame is often expanded by consent adjournments, those will be less frequent if the defense knows right away that it has to go to trial. This may lead to prosecutions being dropped or lost because lab reports don’t come back in time or witnesses are unavailable in the tighter time frame allowed.
Another factor to consider is that if judges know that the defendant is facing certain deportation, many will assess higher bail to make sure that the accused doesn’t warrant and skip out of town. NYC and other communities, recognizing that even low bail on petty offenses penalizes indigent defendants and crowds the jail system have been adopting creative programs to remove bail from misdemeanor offenses. But that may end, particularly in conservative States and counties with this new deportation protocol.
We will have to wait and see if these issues come to fruition as the deportations become more active. But I believe from my experience in the criminal justice system that the certainty of deportation is highly likely to make more defendants roll the dice and seek a trial dismissal. What that does to an already overburdened criminal justice system will remain to be seen.
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