FORCED TO GO HOME AGAIN

Ornelius Johnson came to New York from Jamaica in 1993. As a legal
resident, he settled in upstate New York with his extended family. In 1997,
he was arrested for criminal possession of marijuana. In an agreement with
the state, he pleaded guilty and was sentenced to time served. Neither the
lawyer or the judge mentioned that in accepting a plea bargain, he could be
deported. And guess what? Today, eight years after the conviction and with
a clean record, Mr. Johnson faces mandatory deportation.

Cornelius Johnson's case is emblematic of a plea bargaining system in New
York that is unfair to immigrants. When plea bargaining works, it works
well: In exchange for a reduction in charges, a defendant pleads guilty,
eliminating the expense and uncertainty of a trial for both him and the
state. But there's one big problem for defendants in New York's immigrant
community: Unlike many other states, New York does not inform immigrant
criminal defendants that part of what they bargained for may include
deportation.

Since 1996, when Congress altered immigration laws, any noncitizen -
including people who have legally lived in the United States since they
were babies - convicted of a broad range of crimes including petty offenses
like turnstile jumping, shoplifting or possession of a small quantity of
marijuana may be subject to deportation.

Unfair as the law is, it is even worse for immigrants in New York, where
some misdemeanors are defined as aggravated felonies under federal
immigration laws, which subject them to mandatory deportation. Furthermore,
in the case of some lesser crimes, a judge cannot review an immigrant's
personal circumstances and grant a deportation waiver if the crime was
committed within seven years of the alien's admission into the United States.

Moreover, New York's Court of Appeals has held that defense lawyers need
not advise a client of the immigration consequences of a guilty plea. The
appeals court has also ruled that New York's statute requiring judges to
advise defendants that their pleas may subject them to deportation is
unenforceable.

So a legal immigrant who came to America as a teenager with his family,
pleaded guilty to possession of a marijuana cigarette a few years after his
arrival and traveled back to his country as an adult to visit an elderly
grandmother, could be barred from re-entering the United States. Had the
court told the young man that he could be deported, he may not have pleaded
guilty, and he certainly wouldn't have left the country.

The consequences are not to be taken lightly. Some of these immigrants are
being forced from the only homes they have ever known, and being sent to
countries that they haven seen since they were children and where they
don't speak the language. Most deportees are separated from their families.
A wife loses a husband, a husband loses a wife, a child loses a parent, a
parent loses a child. When the deportee is the primary breadwinner,
families left behind in the United States suffer extreme financial hardship.

Back in their homeland, deportees may face hostile circumstances. In Haiti,
for example, deportees with criminal records are arrested upon their
arrival in Port-au-Prince, thrown into crowded prisons that don't have
electricity, running water or basic sanitary facilities. They are held for
days, weeks or months without charges. In Guyana, the government publishes
the photos, addresses and reasons for deportation of all criminal deportees
in a national newspaper. The situation can be even worse for deportees with
chronic illnesses like AIDS, diabetes or heart disease who land in a
country with primitive medical care.

Given these harsh consequences, the immigrant defendant should have a
significantly different calculus from his citizen counterpart when deciding
to take a plea bargain. Leaving immigrants in the dark about the
possibility of deportation is simply not fair play, especially considering
that even innocent defendants are encouraged to accept plea bargains simply
to avoid the expense and trauma of a trial

But there's some potentially good news here. The Legislature may soon
consider a new law requiring judges to tell defendants that their pleas may
subject them to deportation. Presumably this time the Legislature will
write a law that the courts will enforce.

Immigrant defendants must be fully aware of the consequences of a plea
before making it, and the law should allow an immigrant to withdraw his
plea if he is not made aware of the possibility of deportation and is
subsequently expelled.

Massachusetts and Arizona recently enacted statutes and court rules
requiring that aliens be fully informed of the immigration consequences of
their pleas. New York should follow suit. Only in this way can New York
restore fundamental fairness to plea bargaining and the criminal justice
system for immigrants.