But legislators still wanted prosecutors to try to save the state money, saying that prosecutors’ compensation would not be cut as significantly if they could find dollars. In response, many individual commonwealth’s attorneys told General District courts that they would automatically waive jail time on their own for certain crimes, obviating the need to appoint counsel in many cases, Doucette said.
He and others, including Ebert, have reserved the right to pursue jail time in certain cases even as they waive it most of the time.
Meanwhile, courts have not said state judges are required to appoint counsel for indigent defendants facing potential federal immigration charges. “It may be desirable, but there’s a lot that’s desirable in these tough economic times we’re not able to do,” Doucette said.
Ebert said that he was unaware that unrepresented defendants pleading guilty to misdemeanors without facing jail time could be deported or face other immigration-related consequences. When defendants who are represented by counsel look to work out a deal on the grounds that the immigration-related consequences are more severe than the crime, Ebert said he listens and sometimes tries to work out a deal.
Generally, though, he said that’s not his job. “As a matter of principle, the commonwealth attorney’s office can’t be concerned about what happens to an illegal immigrant,” he said. “You can’t really concern yourself about what the federal implications are.”
Prince William General District Court Chief Judge Peter W. Steketee did not respond to requests for comment.
William E. Jarvis, a Prince William General District Court judge who until October was a prosecutor in that county, said that there was no ill will on the part of Prince William’s judges or prosecutors toward immigrant defendants.
“We’re slow to change, period,” Jarvis said of the judicial system. “I can tell you with absolute certainty . . . there was no systematic plan on treating [immigrants] differently.”
He said some judges will now appoint state-funded defense lawyers when documents indicate that a defendant is subject to a “detainer,” or hold, from ICE.
However, it is not a policy of the court, he said.
Mark Voss, a criminal defense lawyer who represents many undocumented immigrants in Prince William, said some judges have begun to appoint lawyers in minor criminal cases in which defendants also have federal immigration issues. Judges, he said, should have been more aware of immigration consequences in the first place.
Prince William, one of the first in the country to crack down on illegal immigrants locally, participates in a partnership with federal immigration authorities, known as 287 (g), in which local jail officials can place a detainer and hold an undocumented immigrant on behalf of federal immigration authorities.
After Glasberg, the Alexandria civil rights lawyer, complained about the way Lopez and others who lacked counsel had been deported after agreeing to misdemeanor guilty pleas, the Virginia Supreme Court last month began requiring the use of new forms when defendants waive their right to a lawyer. The new forms warn defendants of the consequences of pleading guilty, including deportation and other federal immigration impacts.
But Glasberg said the new forms are required to be given only to those who waive their right to a lawyer — not those like Lopez, who, because they faced no jail time, were never provided counsel.
Eddie Macon, a Virginia Supreme Court administrative official, said individual judges have discretion about whether to provide the form or inform defendants when immigration consequences are on the line.
Nationwide, New York City has become a model for dealing fairly with criminal defendants’ immigration issues. There, the public defender's office has immigration lawyers who work in-house to deal with immigration issues.
But many other jurisdictions, immigration advocates say, have struggled to implement fairer procedures in the wake of Padilla.
“The punishment should fit the crime — it shouldn’t always result in banishment and separation from family,” said Laura Lichter, president of the American Immigration Lawyers Association. “It’s not about giving somebody preference in the actual process. It’s about making sure people understand what’s at stake. This part of the system has to be fair.”