You are the last lawyer they will ever see before exile: Padilla v. Kentucky and one indigent defender office's account of creating a systematic approach to providing immigration advice in times of tight budgets and high caseloads.

• Author: Martinez, Carlos J.
• Position: Padilla and the Future of the Defense Function

Introduction I. The Factual Background, by the Numbers A. Immigration Enforcement B. The Public Defender's Office C. Immigration Advice and PD-11 II. Building a Better System Without New Funding A. Information Gathering Component B. Advice Component C. Staff Development Component III. The Future Conclusion INTRODUCTION

The recent decision in Padilla v. Kentucky (1) reaffirmed what criminal defense lawyers have known for years: "It is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation...." (2) This task is particularly daunting when faced with high caseloads and shrinking budgets. Public defenders must nevertheless find a way to ensure that every noncitizen client is properly advised under the standards of professionalism as reflected in Padilla. (3)

This Article shares the experience of one public defender's office regarding the intermediate steps it took to create a systematic approach to advising clients on the immigration consequences of their pleas. In sharing our experience, we do not purport to set forth the standard for all criminal defense lawyers or even other indigent defense lawyers. (4) As national immigration advocacy organizations have recognized in the wake of Padilla, "what works best for one office or program may not work best for another." (5) Our hope is that our experience can serve as a point of departure for other indigent defense offices in Florida and other states.

This Article expands on issues presented at the Padilla and the Future of the Defense Function conference, sponsored by the National Association of Criminal Defense Lawyers ("NACDL") and the National Legal Aid and Defender Association ("NLADA"), and cosponsored by the American Bar Association Criminal Justice Section Task Force on Comprehensive Representation. This Article provides an overview of how one Florida public defender's office is attempting to meet its professional and ethical obligations as reflected in Padilla, and also addresses the Padilla implications in Florida, where, every year, tens of thousands plead guilty or no contest in misdemeanor cases without adequate counsel.

1. THE FACTUAL BACKGROUND, BY THE NUMBERS

   1. Immigration Enforcement

      The level of federal immigration enforcement activity has increased radically in the past three years. Today, federal immigration enforcement activity prioritizes the removal of noncitizens with criminal convictions. The United States Immigration and Customs Enforcement agency ("ICE") boasts proudly that "[f]or two years running, ICE has removed more aliens than it did under the prior Administration." (6) Under the Obama Administration, ICE has removed more than one million noncitizens. (7) Allegedly, ICE has a quota of 404,000 people to remove during this year alone. (8) In the same vein, there are 300,000 open removal cases clogging immigration courts. (9) Currently, 34,000 people are being held in immigration detention facilities at a cost of $166 per person per day, for an approximate total of $5.5 million per day. (10) While removal is a civil sanction, the detention setting is that of a criminal proceeding. (11) The seemingly rapid-fire pace of removals and the significant detention population are likely due to the federal government's Secure Communities program.

      Secure Communities is a "biometric information sharing capability" that works in tandem with local jail facilities' booking processes. (12) When a person is booked and fingerprinted into a state or county jail, the Secure Communities program operates to automatically and simultaneously check an arrestee's fingerprints against the Federal Bureau of Investigation's criminal history records as well as the Automated Biometric Identification System ("IDENT"), maintained by the Department of Homeland Security ("DHS"). (13) If the fingerprints match fingerprints in these systems, a notification to ICE is automatically generated and ICE takes enforcement action as it deems appropriate. (14) Immigrant advocacy groups and others have criticized the program for lacking transparency and casting too wide of a net over noncitizens, regardless of status, who have not been convicted criminally or have only been convicted of or arrested for nonviolent crimes, (15) as well as naturalized citizens and even U.S. born citizens. (16) Closer to home, the Miami Herald has reported that the federal government has deported at least three Cubans in the last five years. (17) Secure Communities has been operational in Miami-Dade County since 2009 and is operational in all sixty-seven counties in Florida as of 2010. (18)

      Given all of the above, indigent defenders are hard-pressed to investigate the criminal case while noncitizen clients with ICE detainers remain in local custody for fear that bonding out will trigger a transfer to ICE custody. Once in immigration detention, over 46% of detained noncitizens are transferred two or more times with an average transfer distance of 370 miles, further straining the indigent criminal defender's ability to properly investigate and handle the criminal case. (19)

      In addition to noncitizens, indigent defenders may also represent U.S. citizens who have ICE holds and are on the verge of being unlawfully detained by ICE. For example, in March 2011, immigration officials deported a four-year old girl to Guatemala even though she is a U.S. citizen. (20) In June 2011, immigration officials detained and questioned a U.S. citizen while he was riding his bike in Miami Beach despite the man's insistence that he was a citizen. (21) The man contacted the Miami Herald to share his story after reading about other U.S. citizens who suffered a similar plight. (22) Numerous citizens have been swept up and detained in connection with ICE workplace raids. (23)

      In contrast to criminal cases, in immigration matters, there is no right to government-appointed counsel even though the result can be worse than imprisonment. (24) As there is no right to government-appointed counsel at removal proceedings, (25) for the "overwhelming majority" of individuals, "the last lawyer they will ever see before they get deported is the defense counsel who tries to help them in their criminal trial." (26) While indigent defense work attracts lawyers with a wide range of skills and personality traits, the common denominator among all defenders is a deeply held belief in the constitutional right to force the government to prove beyond a reasonable doubt that the person on trial committed the charged offense. Defenders are united around the concept that the liberty of no person, whether rich or poor, should be taken away without fighting every step of the way within the boundaries of ethics and the law. That fight can rarely come to pass when a defendant is not represented by counsel and, by extension, uninformed. Naturally, defenders are disturbed at the thought of people representing themselves in criminal cases, and the same thinking resonates regarding noncitizen clients who are or will soon be facing removal. For low-income people who are already living on the margins of society--among them lawful permanent residents with no prior contacts with the criminal justice system--an overworked APD laboring within an assembly line system of justice is truly their last defense, not only in their criminal cases, but also to prevent their removal and exile. (27) As discussed below, thousands in Florida face exile without adequate representation. (28)

   2. The Public Defender's Office

      Florida has twenty judicial circuits serving 18,537,420 residents. (29) An elected public defender heads up each circuit's office. The Public Defender for the Eleventh Judicial Circuit of Florida ("PD-11") serves Miami-Dade County, Florida, an urban county with almost 2.5 million residents, of which 620,839 are not citizens. (30) Miami-Dade's noncitizen residents comprise 25% of its population. (31) In contrast, Florida's noncitizen population would be 7.6%, if Miami-Dade were not counted in the equation. (32) Therefore, immigration consequences reviews are necessary in significantly fewer cases in the other nineteen public defender offices.

      PD-11, by far the busiest public defender's office in Florida, handles approximately 100,000 cases each year. (33) PD-11 primarily uses a horizontal model of representation, which means that a client's case tends to be handled by many different APDs as the case progresses to different stages. (34) Approximately 175 APDs are assigned to handle trial cases, with more experienced APDs assigned to more demanding cases.

      For decades, indigent defense lawyers throughout the United States have been dealing with chronic underfunding while trying to provide competent representation to millions of clients each year. The PD-11 is no exception. (35)

      During the last thirty years, indigent defense has been drowning in the flood of arrests caused by a massive infusion of federal dollars into local police departments and prosecutor offices to fight the war on drugs. Federal funding seldom has included indigent defense in the funding distribution. At the same time, many state legislatures have adopted minimum mandatory and enhanced sentences (e.g., three strikes, 10/20/life, habitual offender) (36) and prosecutors have expanded their use of untested methods (junk science) (37) to prove their cases. Those practices have resulted in enormous, unsustainable growth in jail and prison populations (38) and an ever-increasing amount of work required for competent indigent defense.

      In June 2008, PD-11 filed motions to decline new noncapital felony case appointments due to ethical conflicts arising from its high caseloads. (39) After a contested hearing, the trial court agreed. (40) The trial court's decision was stayed pending the prosecution's appeal. (41) The Third District Court of Appeal of Florida reversed the trial judge's order. (42) The Florida Supreme Court accepted...