Monday, May 7, 2012

The protection of the Constitution applies to all that live by it

An immigration case out of Chicago, Chaidez v USA (1), makes us question who shall receive the benefits of Constitutional justice and how the community should respond when justice isn’t applied.

The case is about a woman from Chicago, Roselva Chaidez, who was born in Mexico.  She has lived in the United States since the 1970s.  By many accounts Chaidez was the unwitting participant in an insurance scam.  The many details of the case are less important than the resulting issues, but it is clear that she was not involved in any violence and even the fed’s let her plead guilty and let her off with a fine.

Her lawyer worked the deal for Chaidez, encouraging her to tell the truth and end the case.  He did tell Chaidez about the direct punishment she could expect by pleading guilty.  What he didn’t tell her is that it would not allow her to apply for citizenship.  It isn’t clear if the lawyer knew that or not.  It should be expected that if a lawyer makes a strong suggestion that someone like Chaidez should plead guilty, he would inform her of all the collateral damage that would result.  That is the reason an expert is hired in any field, to help understand the short and long term consequences.

When Chaidez did apply for citizenship, she was picked up for deportation.  She was able obtain another lawyer to challenge the case in the courts.  It has found its way to the Supreme Court.

Chaidez’s new lawyer has built the case on a ruling by the Supreme Court after Chaidez’s guilty plea and conviction.  At the base for her case is Padilla v Kentucky.  In that case, the Supreme Court ruled that non-citizens that are not advised that pleading guilty to a felony means automatic deportation were deprived of their Sixth and Fourteenth amendment rights to effective counsel.  Chaidez’s is the same situation, but since she pleaded guilty before the Padilla case, the United States is asking that the conviction stand.  The court is being asked if the ruling only applies to cases after Padilla or should it be retroactive.

The Obama administration is taking a hard stand on the issue.  The administration said that, “[it] will have a significant impact on the federal government’s efforts to enforce this nation’s immigration laws against those who have become removable as a result of pre-Padilla criminal convictions.”
Groups siding with Chaidez have taken an equaling strong stand in opposition.  “The lack of remedy,” the groups assert, “[for pre-Padilla ineffective counsel] imposes harsh consequences on countless non-citizens facing detention and deportation as a result of wrongfully procured plea-based convictions.” (3)

Whatever the legal arguments are, there are four practical issues for the community to consider.  First, the community can’t tolerate ineffective counsel for defendants when charged with a crime.  Second, while prosecutors have a responsibility to pursue their cases as aggressively as possible, they also have a responsibility to keep defendants, who are presumed innocent until proven guilty, aware of the full consequences of the charges applied against them.  Also, there can be no finality to a case when Constitutional rights come to light after convictions, such as Supreme Court rulings that apply directly to the defendant’s case.  Finally, being a non-citizens living in the country doesn’t mean that that you are not protected by the Constitution. 
The right to counsel is a Sixth Amendment issue.  It clearly states that we all have the right “to have the Assistance of Counsel for his [her] defence.” (4)  To believe any other way means that people could be picked up and sentenced to prison with no trial.  After all, if they are guilty until proven innocent, let’s just get them off the street right away, no need for a trial. 

An innocent person has all the rights and privileges of the community and should expect that the community will defend them against all threats to their life, safety and freedoms.  So, if people are innocent until proven guilty, the logical responsibility of the community is to assure that they are properly defended and understand all the consequences if they are found guilty.  The community must be certain that the lawyer the defendant hires, or is provided, is competent enough to understand the obligations of providing a proper defense. 
As for the prosecution, we expect the prosecutor to aggressively pursue their case against a defendant.  Our system has provided this right to the prosecutor.  But, for every right there is an equally important responsibility.  The responsibility here is that the prosecutor will insure that the accused is fully aware of his consequences if convicted of the crime he or she is charged with. 

Once convicted, no matter the circumstances of the conviction, the case can only be final to factual issues not Constitutional issues.  If a person is convicted under a law that made his action criminal and is later changed, the convicted is to receive the benefits of the change.  This prevents laws from being enacted that make an action criminal just to jail someone, then changed once they are convicted.  Why should it be any different for Constitutional issues?  When the Supreme Court makes a ruling on an issue, it needs to have the same effect as changing a law.
Perhaps the most difficult issue for many is the non-citizen status of Chaidez.  The argument may be that since Chaidez is a not a citizen, she doesn’t have an automatic right to receive the full benefits of the Constitution.  (There is a question as to Chaidez’s immigration status.  It is not clear that she is here “illegally?”  But, it doesn’t matter because of the of the amnesty legislation that has been passed since Chaidez’s arrival.  The only issue that is important to this case is her non-citizenship status.)  All the time that Chaidez was here, she was expected to follow all the laws that the Constitution allows.  Yet, as soon as she runs in to trouble with the law, she is not given the full benefit of the Constitution.  In this case, she didn’t receive a proper defense as dictated by the Constitution.

This is not the intent of the authors of the Constitution.  They intended the rights and privileges guaranteed by the Constitution to apply to all.  It is simple to say this because of our own interpretation of the words of the document.  But, this time the proof comes from none other than a founding father. James Madison said, “But a more direct reply is, that it does not follow, because aliens are not parties to the Constitution, as citizens are parties to it, that, whilst they actually conform to it, they have no right to its protection. Aliens are not more parties to the laws than they are parties to the Constitution; yet it will not be disputed that, as they owe, on one hand, a temporary obedience, they are entitled, in return, to their protection and advantage.” (5)
According to Madison, when someone has the responsibility to live under the laws of the country, they also have the right to the protection of the Constitution.  This is the very essence of a Responsible Community; a balance between rights and responsibilities.  You can’t have one without the other.

(4)  Sixth amendment to the United States Constitution