Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
The Spring seminar and gala in New York was a terrific start to our yearlong celebration of NACDL’s 50th anniversary. It was a tribute to the vision of the founding group of lawyers who, from their shared experiences as criminal defense lawyers, understood the need to band together to form this Association. The gala was also a tribute to the men and women who today continue the work of ensuring that all accused persons are zealously represented and treated equally under the law.
It was great to see the old and new giants of the profession in the same room, among them Past Presidents Willis, Shellow, Gold, Krieger, Janus, Lyons, Maloney, Margolin, Sonnett, Weiner, Hollander, Hingson, Goldstein, Fogelnest, Lefcourt, Pozner, Moffitt, Schwartz, Goldman, Scheck, Bergman, and Pinales. It says a lot about our organization that we had an African American president and a woman president long before our country was ready for one.
Our Board meeting included a discussion of Operation Streamline, a wrong-headed federal prosecutorial initiative that is taking place in several Southwestern districts. Undocumented persons arrested while attempting to cross the Mexican border are brought to a local jail, and those without a criminal history or prior illegal entry are charged in federal court with a misdemeanor, “entry without inspection.” These individuals often meet their attorney for the first time at their initial appearance, where they are brought bound together in groups of 50 or more before a U.S. magistrate judge, who explains the charges en masse. The defendants are offered a short sentence in return for guilty pleas and then speedily deported to their own country, usually Mexico. The procedures barely, if at all, comport with due process of law.
At the urging of an NACDL Board member from Tucson, Bob Hooker, a stalwart defender of the rights of all accused persons, we have formed NACDL’s Operation Streamline Task Force, co-chaired by Cynthia Orr. Tragically, Bob Hooker, who passed away last month before we could implement his recommendations, was not present when the Board acknowledged his contributions (see sidebar) and adopted the task force’s recommendations during the meeting.
As I write this column, a species of Operation Streamline is being implemented in Iowa, where after a mass arrest of undocumented individuals employed at a plant, CJA lawyers were appointed to dozens of clients each. In the Iowa cases, the arrestees are being given seven days to plead guilty and consent to deportation or face being charged with identity theft (which carries a two-year mandatory minimum penalty per charge as opposed to less severe misdemeanor offenses).
Defenses that cannot be properly explored under these streamlined procedures do exist in these cases. For example, lack of proof of a border crossing, venue issues, and derivative U.S. citizenship may be viable defenses; some cases also present extenuating circumstances, such as instances in which someone seeks to visit a dying child or parent. In some districts, inadequately resourced groups of court-appointed lawyers are being forced to handle cases, like cattle at the stockyards, in mass guilty pleas. In other districts, federal defenders, who have the most expertise and resources to defend these cases, are not being assigned to represent the arrestees. At times, these arrestees are not given adequate explanations of the collateral consequences of a decision to plead guilty, which include inability to re-enter the United States legally in the future or apply for citizenship.
As a result of the task force’s report, which was finished before Bob Hooker’s untimely death, the Board approved 15 recommendations, among them:
- Counseling lawyers to refuse to participate in these cases unless they are competent in immigration law and are provided adequate time and resources to allow meaningful representation;
- Counseling lawyers to perform sufficient investigation to determine whether valid defenses are available and fully advising their clients of collateral consequences of a guilty plea;
- Recommending that lawyers either be bilingual or have a qualified interpreter when advising their clients;
- Recommending consultation with the client at every critical phase of the case;
- Recommending that counsel contact the appropriate consulate and preserve the client’s Vienna Convention on Consulate Rights;
- Taking care to assure that arresting and detaining authorities treat clients well, provide adequate food, clothing and shelter, and preserve the clients’ property.
Operation Streamline is the latest federal prosecutorial initiative that attacks perceived problems without regard to the individual circumstances of the accused. It dilutes our constitutional guarantees; no federal judge should arraign more than one person at a time nor convict and sentence a human being to prison in a communal sentencing procedure. Operation Streamline is anathema to an ordered system of justice. I am proud of NACDL’s role in combating it.
Resolution Approved by the Board of Directors — May 4, 2008
In Recognition and Remembrance of Robert J. Hooker
WHEREAS, Robert J. Hooker was a dedicated defense lawyer who believed deeply in the mission of the National Association of Criminal Defense Lawyers;
WHEREAS, Robert J. Hooker distinguished himself as an articulate and passionate advocate for the rights of the indigent accused;
WHEREAS, Robert J. Hooker served as a beloved and distinguished member of the Board of Directors of the National Association of Criminal Defense Lawyers;
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IT IS HEREBY RESOLVED this 4th day of May 2008, in New York, New York, that the Board of Directors of the National Association of Criminal Defense Lawyers recognizes and remembers the extraordinary professionalism, service to justice and dedication of a great lawyer, our friend and colleague, Robert J. Hooker.