“Civil Right to Counsel” Granted to Immigrants Facing Deportation; In San Diego County, Lawyers Will Be Provided Free
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An Important Step For The Civil Right to Counsel Movement
WASHINGTON, D.C. (May 6, 2021) - San Diego County has voted to provide attorneys to immigrants facing deportation proceedings, just as they would be entitled to appointed attorneys in criminal cases, even when not facing jail time.
This is an important step for the "Civil Right to Counsel" movement - sometimes called the "Civil Gideon" movement after the famous 1963 case of Gideon v. Wainwright in which the U.S. Supreme Court held unanimously that the Constitution required states to provide attorneys to defendants unable to afford their own, at least in criminal cases, says public interest law professor John Banzhaf.
Yet, as the Washington Post recently reported, despite this right, "enshrined by the Supreme Court nearly six decades ago and then expanded to cover even minor cases in which incarceration is unlikely, . . in courts across the country, poverty-stricken litigants in noncriminal cases routinely face life-shattering outcomes, including jail time, without ever seeing a lawyer or receiving basic legal advice."
The current immigration crisis is exacerbating this problem, says Banzhaf, citing a 2016 study by the American Immigration Council showing that "immigrants with legal representation were four times more likely to be released from detention while awaiting a custody hearing and also more likely to win their deportation cases."
Defending Against A Notoriously Complex System
At the moment, only 17% of detainees in San Diego have such representation. This means, according to one Council member, that "the lack of appointed counsel means that tens of thousands of people each year go unrepresented, including asylum-seekers, longtime legal residents, immigrant parents, spouses of U.S. citizens, and even children . . . They are left to defend themselves in a notoriously complex system.”
Interestingly, those on the Council who opposed the measure seemingly did not dispute that basic fairness required legal representation in such situations. Instead, they suggested that since immigration was primarily a federal matter, the U.S. government, and not the taxpayers of San Diego, should provide the representation and pay the resulting legal bills, notes Banzhaf.
The problems and unfairness of subjecting people to complex legal proceeding which can result in very harmful consequences, but without any legal representation, is not confined to immigration-related civil proceedings.
It also occurs, all too often, in many other situations.
The Problem Of Depriving People Facing Dire Consequences
As the Washington Post pointed out, "those cases include disputes in which the stakes could not be higher: forfeiture of parental rights; eviction or foreclosure; danger from abusive spouses and domestic partners; and, in guardianship cases, the loss of control over property, and even liberty. In child-support cases, defendants are routinely incarcerated, for days, weeks or months without recourse to legal assistance. All of this is an offense to justice."
So San Diego's decision to assume this responsibility, even for a matter which is more federal than local, might focus more attention on the problem of depriving people facing dire consequences in various legal proceedings of any effective representation - especially the kind they would be constitutionally entitled to if accused even of a minor crime with virtually no threat of any jail time.
At the least, it suggests that Congress, as it wrestles with the many problems and controversies involved in "immigration reform," should consider whether any involved in that legal system should be entitled to representation provided by the federal government, suggests Prof. Banzhaf.
