In Virginia’s misdemeanor courts, defendants are frequently not appointed defense counsel if they will not serve jail time if convicted. For noncitizen defendants this practice has devastating consequences, because even a minor misdemeanor conviction can result in deportation. Recently, for example, the Washington Post told the story of a 19 year old man who was deported because he pled guilty to a misdemeanor charge in Prince William County, without counsel.
At CAIR Coalition we have long been concerned about the due process violations inherent in noncitizens' taking misdemeanor pleas without the assistance of a lawyer. We were therefore heartened to learn that on November 24, 2014, the Virginia State Bar's Legal Ethics Committee issued a proposed legal ethics opinion addressing the ethical obligations of a prosecutor who plea bargains with an unrepresented defendant, knowing that defendant is a noncitizen and could be subject to deportation upon conviction (the proposed opinion can be accessed here). The proposed opinion specifically concerns situations in which a prosecutor offers a noncitizen a plea to a misdemeanor charge for which the prosecutor seeks no jail time, which, in turn, means that the noncitizen is not entitled to a public defender or court-appointed counsel under Virginia law.
CAIR Coalition applauds the Ethics Committee for recognizing the grave failings of procedural justice in Virginia’s misdemeanor courts, but believes the opinion does not go far enough to address prosecutors’ ethical obligations given the overwhelming inequities in procedural justice for unrepresented noncitizen defendants. CAIR Coalition therefore, joined by the National Immigration Project of the National Lawyers Guild (NIPNLG) and the Immigrant Defense Project (IDP), submitted a written comment to the proposed opinion on January 5, 2015. The comment commends the Committee for recognizing that prosecutors play a vital role in achieving just and proportionate outcomes for noncitizen defendants, but proposes that the scope of the opinion be expanded. Specifically, the comment recommends amendments to the proposed opinion to reflect that a prosecutor acts in violation of her ethical obligations under Virginia rules if she proceeds with the prosecution of an unrepresented indigent defendant she has reason to believe was born outside of the United States unless and until counsel is appointed. Appointed counsel in these cases is vital to ensure that noncitizen defendants are properly advised regarding the life-changing immigration penalties that frequently accompany even relatively minor criminal convictions. The comment submitted by CAIR Coalition, NIPNLG and IDP can be read here.
