Immigrants and Problem-Solving Courts

• DOI: 10.1177/0734016808321523
• Published date: 01 September 2008
• Author: Alina Das
• Date: 01 September 2008
• Subject Matter: Articles

308

Immigrants and Problem-Solving

Courts

Alina Das

New York University School of Law

Problem-solving courts are increasingly imposing requirements that adversely affect immi-

grant defendants seeking to participate in alternative sentencing and diversion programs.

Upfront guilty pleas, admissions of guilt, and jail sanctions may leave immigrants at risk of

deportation and other negative immigration consequences—even if they successfully complete

court-ordered programming and the court ultimately dismisses the charges against them.

These consequences in turn affect defendants’ families and communities and complicate the

work of key players in the criminal justice system. This article explains why immigrant defen-

dants are at risk and how problem-solving courts may adopt programs and policies that address

these concerns for immigrant communities.

Keywords: immigrants; problem-solving courts; alternatives to incarceration; criminal

record; deportation

One of the defining measures of the effectiveness of the problem-solving court model

is its impact on defendants. The goal of problem-solving courts is to provide innova-

tive solutions to complex legal and social problems affecting victims, defendants, and com-

munities (Berman & Feinblatt, 2005; Farole, Puffett, Remple, & Byrne, 2005; Simon,

2003). At their core, “[p]roblem-solving courts demand that everyone attached to the court

broaden their scope to see the real-life consequences of courtroom decisions” (Berman &

Feinblatt, 2005, p. 33). To that end, commentators have explored some of the dilemmas that

defendants and their defense attorneys face when given the option of participating in prob-

lem-solving court programs. These discussions often focus on weighing the benefits of

problem-solving court participation, such as access to treatment and alternatives to incar-

ceration, against concerns about coercion and the erosion of those rights traditionally asso-

ciated with the adversarial system in criminal courts (Meekins, 2007; Quinn, 2001; Simon,

2003; Spinak, 2003). Some commentators have noted the positive connection between

problem-solving courts and avenues for defendants’ reentry and reintegration back into

society (Berman & Anderson, 1999; Fisler, Berman, & Fox, 2003; Wilkinson, Bucholtz, &

Criminal Justice Review

Volume 33 Number 3

September 2008 308-328

© 2008 Georgia State University

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Author’s Note: The author would like to thank Manuel D. Vargas, Joanne Macri, Benita Jain, Michelle Fei,

Benjamin Gold, and Marianne Yang for their helpful suggestions and assistance in the research and preparation

of this article. This research was supported in part by the New York State Defenders Association Immigrant

Defense Project and the Soros Justice Fellowship Program of the Open Society Institute. The views expressed

herein are those of the author and may not necessarily reflect the views of the supporting entities.

Correspondence concerning this article may be addressed to Alina Das, New York University School of Law,

Immigrant Rights Clinic, 245 Sullivan St., 5th Fl., New York, NY 10012; email: alina.das@nyu.edu.

Haines, Sumner / Implicit Measurement 309

Siegfried, 2004). Many problem-solving courts employ deferred prosecution or adjudica-

tion models that permit defendants to avoid a more serious criminal record and its attendant

consequences if they successfully complete court-ordered requirements (Casey & Rottman,

2003; Hora, Schma, & Rosenthal, 1999). For these defendants, the benefits of participating

in problem-solving courts may indeed outweigh the costs.

Yet few commentators have explored the adverse impact that certain aspects of the prob-

lem-solving court model have on noncitizen defendants. Noncitizen defendants—including

lawful permanent residents (green card holders), refugees or asylees, visa holders, and

undocumented immigrants—may face deportation and other negative immigration conse-

quences as a direct result of their guilty pleas or other admissions of guilt in problem-

solving courts. These consequences may result even if the court ultimately vacates the

guilty plea and dismisses the charges upon successful completion of the court-ordered

diversion program. The jail sanctions incorporated in the typical problem-solving court

model also lead to other complications, particularly for lawful permanent residents with

prior convictions and undocumented immigrants. In some cases, individuals who receive a

jail sanction may end up in deportation proceedings even if their current case in problem-

solving court is resolved in their favor.

These surprising consequences present a significant issue for problem-solving courts in

many parts of the country. More than 37 million people in the United States—approximately

one out of every eight persons—are foreign-born (U.S. Census Bureau, 2006a).

Approximately 58% of foreign-born residents in the United States are noncitizens, i.e., they

have not yet attained U.S. citizenship (U.S. Census Bureau, 2006a). In several states, includ-

ing Arizona, California, Florida, Nevada, New Jersey, New York, and Texas, the percentage

of noncitizen residents exceeds 10% (U.S. Census Bureau, 2006b). Although statistics on the

number of immigrant defendants involved in problem-solving courts are not available, other

statistics provide some indication of immigrants’ involvement in the criminal justice system.

Research indicates that immigrants as a whole have lower rates of incarceration than native-

born Americans (Butcher & Piehl, 2007, 2008; Mears, 2002). In certain states with high

immigrant populations—such as Arizona, California, Nevada, and New York—approximately

10% of the state prison population or more is characterized as noncitizen and/or foreign-

born (Bureau of Justice Statistics, 2006). Although these numbers tell us little about the spe-

cific involvement of immigrant defendants in problem-solving courts (particularly because

involvement in these courts tends not to involve prison time), they indicate that some per-

centage of people involved in the criminal justice system are immigrants and may face sig-

nificant immigration consequences—including deportation—due to criminal charges.

Indeed, since 1997, the U.S. government has deported 672,593 noncitizens based on crimi-

nal grounds, affecting an estimated 1.6 million children and spouses left behind in the United

States (Human Rights Watch [HRW], 2007).

This article explains the consequences that immigrant defendants face by participating

in problem-solving court programs, why courts should be concerned about these conse-

quences, and how courts may adopt programs and policies that address these issues. First,

the article describes the negative immigration consequences of criminal charges generally.

Second, the article explores how the interplay between immigration law and certain aspects

of the problem-solving court model may lead to negative immigration consequences for

noncitizen defendants. Third, the article examines the tensions that these immigration