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Opinion: Ending New Jersey’s Policy of Cruel and Usual Punishment

Undocumented immigrants are often tried and sentenced to deportation without benefit of legal counsel

potter
Credit: Amanda Brown
R. William Potter

One of the most important initiatives in Gov. Phil Murphy’s proposed state budget for the fiscal year starting July 1 is a $2.1 million appropriation to provide attorneys for undocumented immigrants: New Jersey residents facing detention and deportation who are too poor to afford an attorney to represent them.

Immigrant rights groups — including the ACLU, American Friends Service, Latin American Legal Defense Fund, and KIND (Kids in Need of Defense) among many others — have formed the Universal Representation Campaign to push for enactment of this modest funding proposal, amounting to less than 1 percent of the state budget.

Here is some background on why this legal-defense program should be enacted when the Legislature reconvenes on June 30:

In 1958, the U.S. Supreme Court ruled that banishment as a penalty for a soldier who went AWOL violated the Eighth Amendment which says simply, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment.”

‘More primitive than torture’

Chief Justice Earl Warren in writing for the high court reasoned that stripping a person of citizenship is “a form of punishment more primitive than torture.”

Since that time thousands of otherwise law-abiding people have been rounded up and banished from this country for one reason, they are here “without proper papers” — despite having committed no crime at all.

In real life, deportation is just another word for banishment. Yet in a triumph of Catch–22 logic, Eighth Amendment protections do not apply to deportation of immigrants, often slurred as “aliens,” because violation of immigration laws is a “civil offense” — in the same category as reckless driving or jaywalking, in which you pay a fine and go home to your family.

As a result, potential “deportees” — including children speaking little English — are not entitled to a public defender despite the severity of the punishment they face.

In Gideon v. Wainwright, the U.S. Supreme Court held that people charged with crimes that can land them in jail are entitled to a free court-appointed attorney if they’re too poor to hire their own. But that protection does not apply to the undocumented who commit “civil offenses,” even though the Eighth Amendment contains no such limitation.

Cruel and usual punishment

As a result immigration courts regularly impose “cruel and unusual punishments” on people charged with no crime at all who do not have an attorney to help them through the maze of immigration laws and regulations.

And make no mistake about it, having a lawyer at your side can make all the difference in the world.

Former immigration Judge Susan Roy writing in a recent Newark Star-Ledger op-ed, quoted a study of a New York law that provides lawyers for poor “detainees” — the first state to do so — which found that immigrants aided by an attorney prevailed in 50 percent of their deportation cases, compared with a mere 4 percent success rate for those who represented themselves in immigration courts.

That’s a difference of more than 1,000 percent.

Clearly, the $2.1 million allocation in the Murphy budget is just a first step in the direction of providing universal due process for immigrants in New Jersey. Last year, according to Ms. Roy, more than 2,500 residents of the Garden State were deported, two-thirds of them without an attorney.

State legislators may properly debate whether to vote for many items in Murphy’s budget, but what is beyond dispute is that for this nation to reclaim the high moral ground, anyone faced with such obviously “cruel and unusual punishment” as banishment, even if euphemistically labeled a “civil offense,” deserves to be represented by an attorney at public expense if they can’t afford their own.

That’s called simple justice — and we can afford it.

R. William Potter is a partner in the Princeton-based law firm Potter and Dickson. The views expressed are his own and do not necessarily reflect the views of the firm or any client.

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