... And Justice for All
Editors Note: In this essay originally published by the Wall Street Journal, former Chief Judge of the New York Court of Appeals Jonathan Lippman criticizes plans to deny lawyers to certain poor immigrants facing deportation because they committed crimes. Judge Lippman makes the larger, never-overemphasized point that due process applies to all, not only to those we deem more likeable or deserving.
New York’s Mayor Junks Due Process
By Jonathan Lippman, May 31, 2017
As a former judge, I know firsthand the importance of having an attorney in court proceedings. Nonlawyers are rarely able to protect properly their own legal rights.
Immigration proceedings are no less important or complicated than criminal ones. Yet immigrants who cannot afford an attorney are not provided one. New York City has sought to remedy this injustice through the New York Immigrant Family Unity Project, which provides legal representation to those facing deportation through organizations such as the Legal Aid Society, Brooklyn Defender Services and the Bronx Defenders.
I applauded Mayor Bill de Blasio’s April announcement of $16 million in city funding to bolster NYIFUP. But since then he’s announced plans to deny a lawyer to those with a criminal conviction for any of 170 different offenses. This would create, for the first time in our legal system, a second-tier class of persons in cases where lives may be changed forever. It threatens due process.
The offenses on the mayor’s list are not always as dramatic as they sound. The providers’ clients—who would no longer receive attorneys under Mr. de Blasio’s plan—have included a homeless man who entered a building lobby and removed a trash bag (second-degree burglary); a youth who engaged in an after-school fight, then picked up another participant’s cellphone after it fell (second-degree robbery); and a man who ran away from a plainclothes officer who subsequently fell and injured his knee (second-degree assault).
These criminal acts were appropriately handled by New York’s courts. They should not mean virtually automatic deportation—which is what happens when a detained immigrant has no lawyer. Some of those facing deportation are lawful permanent residents who have been productive members of the community for decades. Their families are often blameless.
The mayor’s proposal seems to overlook that the project’s lawyers have repeatedly succeeded in preventing deportation. In several cases they were able to prove that the individual facing removal actually was a U.S. citizen but did not realize it and should have never been in deportation proceedings.
Mr. de Blasio’s proposal would also deny legal representation in cases when a prior conviction was unlawfully obtained or was based on unreliable evidence. Removal proceedings have been terminated in such cases. In other cases, lawyers have marshalled a record of mitigating circumstances with the same favorable results. In still other cases, counsel has shown that the individuals facing deportation would face torture upon return to their native countries, and courts have agreed and spared them this horrible fate.
“Any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him,” as Justice Hugo Black put it in the landmark due process case Gideon v. Wainwright. “This seems to us to be an obvious truth.”
That “obvious truth” is no less a truth for our immigrants facing banishment and exile.
Mr. Lippman is a former chief judge of the New York State Court of Appeals, the state’s highest court, and of counsel at Latham & Watkins LLP.