Superior Orders

Do you know what’s even more difficult than dealing with someone who is outraged? It’s even more difficult to deal with someone who refuses to acknowledge that they are outraged and thus acting outrageously.

No, these are not clients that I’m talking about. This peculiarly irritating behavior only comes up when prosecutors find out that my client is an immigrant.

Unlike the prosecution, I don’t have the luxury of ignoring the immigration consequences that my clients face; the Supreme Court’s decision in Padilla v. Kentucky warns that my representation will be constitutionally defective if I fail to warn my client what the Feds will do to him because of any plea bargain. Immigration laws are barbed with hidden hooks that make someone deportable or excludable from the United States based on a single criminal case: domestic violence, substance abuse, and receiving a sentence of 1 year or more are all bases for deportation regardless of the length of time my client has been in the U.S. This is true whether they came willingly or were brought here by their parents, and whether or not they have any waking memories of their “home country.”

Thus, I’m obligated to ask the DA to make concessions that may minimize my client’s immigration consequences without denying the DA the punishment or charge that they want. Examples of these include:

  1. Asking for a sentence of 364 days in cases where the DA asks for 1 year. Believe it or not, this makes a difference in how the immigration courts classify my client’s conviction.
  2. In drug cases, asking the DA to amend the charging document so that it does not state the specific substance my client possessed.
  3. Offering to have my client plea to what may be a more serious charge because, for whatever reason, the immigration laws will look on it more kindly. For example, in a domestic violence case where your client hits his wife and then demands that she not call the police, he may be better off in immigration court after having pled to witness intimidation instead of a domestic violence charge.

These differences may seem minor, but they mean the world to my clients. In contrast, none of the examples above cost the DAs anything at all. However, my requests for these types of concessions are almost always denied.

My best example: a client of mine who had been in the U.S. for more than twenty years and the father of three American citizens, fell on hard times when his bedroom furniture store went under. A friend told him that he could make ends meet by selling small amounts of cocaine. Unbeknownst to him, this same friend was working as a “confidential informant” for the local narco cops. As a result, the only drug deals that this client ever completed were to undercover cops posing as buyers. This happened three times, resulting in three sales charges.

This client languished in custody for many, many months. He did not want a trial, because he had no defense. However, he did not want to plea because he knew that he would be deported back to the failed state from whence he came and never allowed to return.

I asked the DA for a number of comparatively minor things. The DA wanted a sentence of three years for cocaine sales. I offered three consecutive terms of 364 days (one per count) and requested that any reference to the specific controlled substance be deleted from the charging document.

Now, at this point, I must acknowledge that there are many (some of whom may be reading this) who would say that a cocaine dealer should not be given any mercy from the immigration authorities and should face the full consequences of their behavior. I understand why some would say that. And if the DA had simply responded to me by saying, “No, I want your drug dealer client to be deported,” I wouldn’t have been nearly as angry as I was.

What infuriated me was the sanctimonious, yet cowardly pretense of hearing the DA tell me he did not want my client deported, but that he had “no choice” in his actions. The first line of defense for a DA who does not actually want to take responsibility for a situation is to blame his or her supervisor. Again, my client is my ultimate boss; the DA has no client, and so their supervisors often fill that role. And it seems that an implicit part of a deputy district attorney’s job is to protect their supervisors from sounding too obvious when taking actions that say, “we want your client deported.”

I think this is why the response I got for this particular client sounded something like this:

Well Norm, I’ve asked my supervisor. I told my supervisor that your client has been here since before he could drive, and that his entire family are American citizens. But based on the facts of this particular case, we just don’t see a reason to treat your client differently from how we would treat a citizen.

I wished that he would have simply cut the shit and just said that they knew that my client would be deported and that they thought he and his family deserved it for slinging dope to an undercover cop. Because my client was, in fact, going to be treated differently for being a non-citizen; the trivial changes that I proposed would have made it more likely that he would be treated like a citizen. Refusing my proposal under the pretense of treating people fairly was, at best, slight-of-hand and, at worst, transparent bullshit.

Take ownership of the motives for your actions so that they can be discussed openly. That’s what is supposed to happen in a democracy, right? Apparently not, if you don’t have the right papers.

Respectfully Submitted,

Norm DeGuerre

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On the Twelfth Day of Rehab, My P.O. Gave To Me…

The United States has long since lost the “War on Drugs,” and no drug demonstrates the futility of fighting addiction with cops and courts better than crystal meth does. Crystal meth floods the brain with the pleasure chemicals – primarily dopamine – that most of us receive only in the tiniest doses (a six-second orgasm, petting a kitten, etc). Once a person experiences physical withdrawal symptoms, their brain activity will have undergone a permanent change that cannot be “undone.” Brain scans of serious addicts in withdrawal show that meth addicts have the same brain chemistry as someone delirious from starvation. Long term users sometimes lose the ability to produce their own dopamine without the aid of crystal meth.

This means that a serious addict can become chemically unable to feel joy. That is, unless they can get one more hit.

Cops, courts, and prisons cannot frighten people out of using crystal meth. You cannot expect someone who is thinking like a delirious starving person, to rationally weigh the pros and cons of meth vs. prison time before scoring their next hit. For the addict, feeling pleasure for at least a little while is preferable to the dull, gray drone of sober existence.

And let us not forget the many thousands who use narcotics to “self-medicate” for undiagnosed mental illness. Drug addiction must be treated as a public health issue rather than a criminal issue. It is so treated in more civilized parts of the world.

To California’s credit, a half-way solution is becoming increasingly popular. Many jurisdictions are experimenting with specialty drug-treatment courts. Combined with California’s Proposition 36, which allows drug offenders to participate in outpatient drug treatment in lieu of jail time, drug-treatment courts (DTCs) are a well-meaning attempt at treating the root of most of my clients’ criminal behavior. However, criminal sanctions (including jail time or state prison sentences) will follow failure to comply with treatment, which includes relapse. Little accounting is made of the fact that relapse is almost universal, even for those who eventually overcome their addictions. The vast majority of those participating in Prop. 36 in my jurisdiction are doing so because of crystal meth.

Is half-way better than no-way at all? People more informed than I may have statistics. But it sure doesn’t feel that way.

Despite the eerie resemblance that this whole dance bears to a regular-old-adversarial process, the judges like to say that DTC is “collaborative.” Everyone has the defendant’s best interests at heart, and everyone wants the defendant to succeed. The adversarial justice system is calling an armistice! Isn’t that great? We’re all working together to help these poor folks overcome the disease of addiction.

Today, a client of mine is being remanded into custody. She missed two scheduled drug tests. This gave the judge an opportunity to spout some of the other things that the DTC judges like to say:

“So, counsel, don’t you see how you’re undermining that goal by telling your client to remain silent when I ask her why her last urine test came up dirty? To make matters worse, she missed her previous two urine tests. Lack of funds is no excuse: Maybe she would have been able to afford them if she got a part-time job at Chipotle like the lady whose case we just called. Doesn’t she want a part-time job too?”

After all, urine tests only cost five-hours worth of minimum wage labor. Does that sound like a reasonable slice of the pie graph for you, judge? Is it possible that the dreariness of laboring at a fast food restaurant for five hours to pay for urine tests is a big part of why she uses in the first place? Also, don’t tell me with a straight face (“your Honor”) that the Fifth Amendment undermines your goals.

When this particular client is remanded for her malfeasance on probation, she walks past the “inspirational” posters that somebody thinks are mandatory in every DTC courtroom. At some point, the administrative office of courts must have walked through the building and said “You know what will help the repeat-molest victim not to take drugs every time she feels her uncle’s hands on her? A picture of some guy staring at a sunset from a sailboat with the word “POSSIBILITIES” emblazoned underneath it.” As my client is lead away, I can only gawk as I watch a judge try to fight a mental/public health epidemic by shaming and handcuffing the patients in a forum that eerily resembles an optometrist’s waiting room.

I regret to inform her that I can’t get her out by Christmas. Yes, she should have known better. But what is our excuse?

Respectfully Submitted,

Norm DeGuerre