Alien defendants in criminal proceedings: justice shrugs.

• Author: Messier, Flo

1. INTRODUCTION

   The representation of an alien defendant in criminal proceedings poses difficult challenges for the defense attorney. At every stage, the defender must guard against prejudice from cultural differences, mistakes and deficiencies in language interpretation, and disastrous collateral consequences to the defendant's immigration status from the criminal proceeding.

   The potential for prejudice against an alien looms large. The defender must protect her client not only from the expected prejudice against the criminally accused, but also from racial, ethnic, and cultural bias. The alien defendant's own understanding of his circumstances and his ability to confront them may be limited by lack of education and financial resources. Groups within the alien's community may be reluctant to support a criminally charged defendant who may be perceived as undermining the already precarious position of his immigrant community.

   Jurors and other members of the court system may view the increased cost of defending a non-English speaking defendant as an unfair drain on resources largely provided by citizen taxpayers. Interpretation services currently provided to indigent defendants are grossly inadequate. With little promise of relief for constrained budgets, courts tolerate astounding latitude in the quality of interpretation. In the case of the non-English speaking defendant, an "equal justice" standard seems to have been replaced by a "best affordable justice" standard.

   This Note examines the challenges involved in the defense of the alien defendant against a criminal charge. Part II examines the potential for misunderstanding and bias stemming from ethnic and cultural differences. Part III addresses the language barrier, the quality of interpreter services presently provided in the courts, funding concerns, and the potential for relief in the near future. Part IV examines the collateral consequences of the criminal proceeding on the defendant's immigration status and the increased burden on defense attorneys created by the immigration legislation of 1996.(1)

2. BIAS AND CULTURAL DIFFERENCES

   The alien defendant's cultural background may influence not only his perception of the justice system and the way he is treated by members of the system, but also how his treatment of those members is perceived. Although overt discrimination is little tolerated, defense attorneys must combat more subtle instances of discrimination against their foreign-born clients. This Section first examines the potential bias of members of the justice system--police, judges, court personnel, and defense attorneys themselves. Then, it examines possible misunderstandings of the behavior of such a defendant in court proceedings. Finally, it examines how the alien defendant's cultural background can prompt him to waive rights he does not understand, admit to charges he does not fully comprehend, and suffer consequences he did not anticipate.

   1. Bias in the Justice System

      1. Bias Against the Accused

         Bias has not been eliminated from the justice system, as a number of recently conducted studies demonstrate.(2) The Third Circuit Task Force on Equal Treatment concluded, based on a survey distributed to 300 defendants, that the "perception of bias was not generally supported by the quantitative data received."(3) This optimistic conclusion is flawed in two respects. First, the Task Force received responses from only "thirty-nine percent of the questionnaires presumed to be delivered."(4) Further, in the case of the non-English speaking or illiterate inmate, an English questionnaire is useless. The very people who might provide the supporting "quantitative data," those already incarcerated, may be reluctant to report instances of bias, or they may not be solicited at all. Consequently, the unrepresentative sampling compromises the findings.

         Second, notwithstanding the optimistic conclusions, the study's results do in fact report instances of bias. The Third Circuit Task Force found that "minority employees consistently reported experiencing more intrusive security procedures when entering the courthouse than did white employees."(5) A single instance of such overt bias can give rise to a perception of general bias in the justice system, as well as suspicions of more subtle manifestations of bias unseen or unaddressed by supervising authorities. When court employees are treated with bias, minority defendants can hardly expect better treatment.

         One Commission that focused on gender, race, or ethnicity as bases for bias, have found that court systems are generally biased against the economically disadvantaged.(6) Poor defendants cannot afford to hire their own attorneys and must rely on over-burdened public defense systems.(7)

         Posting bond is particularly difficult for the economically disadvantaged defendant. Often the poor alien defendant will remain in custody, or monies earmarked for basic necessities will be applied towards bonding fees.(8) Crystal Meleen, Senior Assistant Public Defender for Fairfax County, Virginia, reports that families of immigrant defendants often make bond payments with one-dollar bills, apparently collected individually from various family members.(9) Even when the alien defendant can meet the requirements of a commercial bonding company, bondsmen often refuse to bond foreign nationals.(10) For example, it has been the policy of Georgia bondsmen since 1984 to refuse bond to foreign nationals,(11) Although out-of-state bondsmen may take an alien defendant's case, it often takes a long time for the alien to obtain a refund of his deposit money from these bondsmen.(12) The financial inability to make bond and the difficulty in finding bondsmen who will take their cases make it more likely that alien defendants will remain incarcerated longer than other defendants charged with similar offenses(13)--a result that feeds alien's fear and distrust of the justice system.(14)

         Inability to make bond and distrust of the justice system may cause many aliens to plead guilty to charges in order to terminate judicial proceedings against them as quickly and cheaply as possible.(15) The actions of criminal justice system personnel can sometimes encourage these alien defendants to plead guilty. For instance, Hispanic residents of Gainesville, Georgia report that officers with pretrial services incorrectly tell Hispanic defendants that they are not eligible for the services of a public defender if they are undocumented aliens.(16)

         In concluding that there are still areas within the state where members of ethnic minorities do not receive equal treatment from the legal system, the Georgia Supreme Court Commission on Racial and Ethnic Bias, which worked to identify and eliminate bias and the perception of bias in the court system, opined that the "[p]assage of time and the exit from the system of such individuals with entrenched attitudes of bias will probably resolve some of these instances of individual prejudice."(17) Such an opinion is unworthy of the Commission's purported goal. The perception of the justice system as biased will persist long after the instances of bias have been eliminated and people who discriminate have left the system. Efforts to root out bias cannot be passive. If the justice system wants to be perceived as unbiased in the meaningful future, aggressive action must be taken now.

         Instruction on detecting and eliminating ethnic bias through seminars, conferences, literature, and diversity training for judges and other justice system personnel is one possible way to eliminate discrimination in the justice system.(18) Such recommendations are helpful but fall far short of the purported goal. Justice systems must adopt a zero-tolerance level for avoidable ethnic bias. Swift removal of offending personnel is required to hasten improvement of the system.

         Similarly, justice systems must actively address bond requirements that deny to poor incarcerated defendants the release that is available to their wealthier counterparts. Although the risk of flight is a valid consideration of bondsmen dealing with alien defendants, alternatives to the traditional bail systems are available. The adoption of formal pretrial release programs, such as that followed very successfully in Cobb County, Georgia,(19) could insure that all eligible persons receive equal opportunity for pretrial release, regardless of their racial or ethnic backgrounds or financial ability to make bond.(20)

      2. Juror Bias

         Juror bias is more subtle and even harder to address. Defense counsel can use voir dire, peremptory strikes, and challenges to unconstitutional peremptory strikes to eliminate juror bias. An even more straight-forward solution to avoiding discrimination in jury selection advocated by this Note is to abolish the use of peremptory strikes of jurors and allow jurors only to be removed for cause.

         Voir dire allows examination of potential jurors to determine whether particular jurors may be biased.(21) Rex Wingerter, an immigration and defense specialist, suggests that voir dire questions about potential jurors' support of English-only movements and immigration reform may help to ferret out anti-alien bias.(22) The scope of voir dire is not unlimited,(23) however, and courts may find some questions unduly invasive and violative of prospective jurors' right to privacy.(24)

         Additionally, the wrongful use of peremptory juror strikes based on racial or ethnic considerations can be particularly difficult to overcome. In Batson v. Kentucky,(25) the Supreme Court held that the Equal Protection Clause forbids prosecutors from striking prospective jurors solely on account of their race.(26) Once the defense makes a prima facie showing of purposeful discrimination, the prosecutor must articulate a race-neutral explanation for the strike.(27) However, the race-neutral explanation offered by the prosecutor need not rise to the threshold required to strike a...