In the Name of All that is Holy, Vote No on the Recall and Spare Us This Idiot

I post this with a heavy heart. Anyone who has been following the most atrocious medical disaster in U.S. history has realized, by now, how much of the culpability lies at the door of the Governor’s mansion. Newsom’s failure to release aging, infirm people and Becerra’s office’s callous defense of prison authorities have ushered in the catastrophe I’ve been covering for a year. And yet, here I am urging you to vote NO on Newsom’s recall, so that this breathtakingly ignorant tabloid star does not unleash Trumpistan in California. In another time and place, she’d be laughed out of town, but in California, home of the Gipper and the Terminator, and in the U.S., where a semiliterate reality show personality shepherded us in the valley of fascist darkness for four entire years, nothing goes without saying. Case in point:

The take above tells you all you need to know about Jenner’s qualifications for the job. One doesn’t even know where to start. First, you’d think that a gubernatorial candidate would know the difference between a state and a county–specifically, the fact that district attorneys are elected and have nothing to do with the governor. Second, you’d think she would be even vaguely familiar with the California District Attorneys Association. Third, to anyone who has expressed even a passing interest in reading or watching the news in the last year, the thought that we are releasing too many people would be risible unless it were so tragic.

I’m too disgusted with what happened in prison to shell out any shekels to support the “no on recall” effort (I’m not too worried about campaign funding: Newsom’s French Laundry buddies can make up the difference), but having been through what we’ve been through in the last five years, I’m painfully aware of what happens when vicious, uninformed idiots get elected. In the name of all that is holy, and I can’t believe I have to say this, do not vote for Caitlyn Jenner.

Not the Chauvin Trial Commentary You Expect

We’re already being inundated with commentary about Derek Chauvin’s conviction and I don’t feel the need to add to the onslaught with too much, so I’ll just say this: Yes, I think this is the correct legal outcome. But I worry very much about the extent to which we are trying to achieve social, racial, and economic equality through criminal verdicts. I worry when people direct their outrage at charge dismissals and acquittals, because having read Frank Zimring’s When Police Kill, I know that waiting for deliverance through the courts is much more of a disappointment than systematic hiring and training changes. And I also worry when people direct their joy (sometimes in questionable ways) at convicting verdicts as the be-all, end-all of achieving justice. Getting to real equality requires the kind of boring financial redistribution of wealth work that doesn’t make headlines or attractive tweets to the extent that a high-profile conviction does. And we have a long way to go.

Diversify CA’s Parole Board and Broaden Medical Parole: Support AB 1210 and 960!

Here’s the letter I submitted in support of AB 1210 and AB 960 today. To do the same, click here!

Dear Committee Members,

Letter of Support: AB 1210 and AB 960

My name is Hadar Aviram. I am a UC Hastings law professor specializing in corrections and the author of a recent book about parole in California, Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole (UC Press, 2020.) I write to offer my strong support for two measures discussed at today’s hearing: AB 1210 and AB 960.

AB 1210 is an essential step for reforming parole. While the BPH is diverse in terms of gender and race, it is not at all diverse in terms of professional background. My research revealed that, almost invariably, gubernatorial appointees to the BPH are former law enforcement officers from the police and correctional fields. This means that, continuing education notwithstanding, the board is truly impoverished in terms of several topics that are incredibly germane to the commissioners’ deliberation: substance abuse, mental health, and the like, which are part and parcel of the skillset of people from the helping professions. In addition, my research reveals that the commissioners are overconfident about their ability to discern remorse or insight from nonverbal clues such as the parole applicant’s demeanor. This confidence is unfounded: robust social science research shows that law enforcement officers, who believe they are better than the general population at detecting sincerity or release, are actually worse at it in controlled experiments. This is another reason to diversify the board.

I also offer my strong support for AB 960. I am currently working on a book about the COVID-19 crisis in California prisons (under contract, UC Press) and have several publications out on the topic. Among the things I have found is that the Governor’s release policy was flawed not only in its modest numbers, but also in terms of determining *who* was to be released. I suspect that the tendency to release people with short sentences toward the end of their sentence was largely political, to avoid backlash; in fact, the people who are older and serve longer sentences (now about a third of the CA prison population) are the ones who pose the least risk to the outside and who need the most help because they, themselves, are at medical risk. It is essential not to pollute public health considerations with a flawed discourse of deservedness. We must expand medical parole, not only for the sake of abating this pandemic, but also for the sake of preventing the next.

Many thanks for adding my research into your considerations. I am happy to provide any further information you need.


Hadar Aviram

Exhibition Review: Future Histories at SFMOMA

At dawn, sit at the feet of action. At noon, be at the hand of might. At eventide, be so big that sky will learn sky.

Alice Coltrane (Swamini Turiyasangitananda)

Today I finally visited SFMOMA and enjoyed a wealth of art therein: there are lots of new and exciting exhibitions, and even the permanent collection, complete with the giant expressionist canvasses and sculpture, is always worth seeing again. My favorite, though, were two astounding videos examining Black liberation featured on the seventh floor, by Theaster Gates and Cauleen Smith respectively.

On the exhibition website, you can see a video of Cauleen Smith discussing her film Sojourner (2018) – or you can watch a preview below:

I found the film haunting. Twelve women with amazing presences–she refers to them as “the Zodiac”–inhabit an apocalyptic landscape. Dressed in regal, colorful outfits, they ceremonially walk the terrain, visiting various structures and holding up banners with quotes from Alice Coltrane (above.) In the background, haunting music plays, accompanied by inspiring texts by revolutionary Black feminists (feminist queer collectives and an antebellum Black shaker community). The texts are incredibly moving, the choice of music lends an eerie-but-hopeful sense to the scene, and the terrain, in Joshua Tree, is stunning and inspiring.

Gates’s Do you hear me calling? Mama Mamama or What Is Black Power? (2018) is very different work. It is a film composed of a wealth of visuals, stills and video, which I now read is aimed at exploring the Black Madonna–but to me, it spoke of the complicated relationship between advancement, capitalism, and consumerism. The film features stunning musical numbers (the flute solos were especially marvelous) and juxtaposes statistical data with dance, fashion photography from Ebony and Jet, and landmark political speeches. It is very rich work, evoking a lot of thought.

What I most appreciated about both films is their expansion of our racial imagination beyond the need to address traumas, examining the long haul and the possibilities for growing and thriving. It seems like our engagement with race, prompted by the events surrounding us, is always engulfed by trauma and by the need to provide immediate remedy to what is wrong (of which there is plenty.) Having a chance to watch works that offer broader horizons, which present Black culture in resplendent, hope-inspiring ways, was heart expanding.

SFMOMA offers timed tickets, which you can buy on their website. The restaurant and café are closed (you can eat a great, vegetable-rich market plate at Lemonade afterwards), but everything else is available and marvelous, including the gorgeous one-way color tunnel. Future Histories shows at SFMOMA until May 23, 2021.

Similarities and Variations in Legal Responses to COVID-19 in Correctional Facilities

This morning I’ll be speaking, alongside Sharon Dolovich, James King, and Jane Dorotik, about court responses to COVID-19, at an event organized by UCLA Social Medicine. Thankfully, we now have a somewhat fuller picture of how litigation efforts have fared overall, which we can draw on to discuss some similarities and variations.

One of the things mindfulness has taught me is that disappointment depends on expectations. In that respect, to say that correctional policies during COVID-19 have been a disappointment reflects, perhaps, unrealistic expectations from institutions that have been unwieldy and incredibly resistant to change even at the best of times. Perhaps it’s not that unexpected that the giant machine that protects the correctional colossus from reform was overall characterized by delays, evasive maneuvers, reversals of fortune and too-little-too-late gestures. So, if one expected mass releases, the disappointment would be commensurate with the expectations.

Still, there is an objective benchmark against which to measure my disappointment: the problem is not that the releases fell short of being what I hoped they’d be–it’s that they fell short of what was needed to curb the spread of the pandemic. We don’t have to wonder what that number would be; we had assessments of individual institutions with recommendations from physicians specializing in pandemic spread. I think that now, in mid-April 2021, we can safely say that, with respect to releases, courts have failed to provide the relief they should have provided.

We have two great nationwide summaries that support this conclusion. Brandon Garrett and Lee Kovarsky’s new piece Viral Injustice is a survey of COVID-19 correctional litigation outcomes. Garrett and Kovarsky conclude:

Judges avoided constitutional holdings whenever they could, rejected requests for ongoing supervision, and resisted collective discharge—limiting such relief to vulnerable subpopulations. The most successful litigants were detainees in custody pending immigration proceedings, and the least successful were those convicted of crimes.

We draw three conclusions that bear on subsequent pandemic responses—including vaccination efforts—and incarceration more generally. First, courts avoided robust relief by re-calibrating rights and remedies, particularly those relating to the Eighth and Fourteenth Amendments. Second, court intervention was especially limited by the behavior of bureaucracies responsible for the detention function. Third, the judicial activity reflected entrenched assumptions about the danger and moral worth of prisoners that are widespread but difficult to defend. Before judges can effectively respond to pandemic risk, nonjudicial institutions will have to treat it differently than other health-and-safety threats, and judges will have to overcome their empirically dubious resistance to decarceration.

Brandon L. Garrett and Lee Kovarsky, Viral Injustice

We also have an excellent summary from the Prison Policy Initiative, who concluded that overall the response was “grim”:

Lawmakers failed to reduce prison and jail populations enough to slow down the spread of the coronavirus, causing incarcerated people to get sick and die at a rate unparalleled in the general public.

However, some individual state and local policymakers took steps that stand as an example of how to release a large number of people from prison — a necessary step to ending mass incarceration. And some policy changes made during the pandemic — like eliminating cruel copays for incarcerated people — are ones we need to remember and demand that they be extended permanently.

Prison Policy Initiative, The most significant criminal justice policy changes from the COVID-19 pandemic

I want to throw in a few additional issues that illuminate aspects of these legal responses:

  1. The PLRA, while greatly responsible for suffocating prison litigation, is not the be-all, end-all of the problem. Following Plata v. Newsom closely, I’m not sure how much of the inaction is Judge Tigar’s allegiance to the PLRA framework and how much of it is a culture of conciliatory, deferent approach and valuing “bringing everyone to the table” rather than ordering a solution. Some of this could be down to individual judicial personalities and some of this could be attributed to litigation cultures in different states or even in different counties. I think that our good fortune in the first round of Von Staich was because we were fortunate to get a panel that was deeply responsive to both the humanitarian emergency behind bars and to the geographical argument that the threat would extend to outside communities.
  2. Relatedly, I don’t think that the state vs. federal litigation was the important distinction. Nor was it class action vs. habeas corpus. I think the defining feature of the litigation is the aggressive deference to correctional authorities–giving vague, modest relief knowing that correctional officers and their lawyers can sabotage it.
  3. Generally speaking, and beyond CA, the staff has been the problem–from dragging their feet to actual frustration of purpose (by not testing, not reporting symptoms, and not getting vaccinated.) There has been precious little done to hold correctional officer unions accountable for their colossal leadership failures.
  4. In the absence of releases, there’s been a lot of reliance on bottleneck provisions–stopping admissions from jails, which put the onus on jails to handle their own pandemic issues, often without data and without accountability. The counties have been left to figure things on their own, with dramatically varying degrees of success (see my analysis of this here.)
  5. The advent of the vaccine made a difference, both in terms of state enthusiasm to help incarcerated populations and in the courage of courts. How vaccines played into advocacy and litigation is a complicated story, which Chad and I will analyze more thoroughly in our book-in-progress, #FESTER: Carceral Permeability and the California COVID-19 Correctional Disaster (under contract, UC Press.) In a nutshell, vaccines opened an avenue that allowed courts to avoid grappling with their paralysis regarding releases and recur to a short-term strategy to provide immediate relief from the current pandemic. And even this was not always necessary, given that many states got ahead of the courts and gave the vaccines.
  6. The most notable aspect of the deference/reluctance to do more for prison and jail populations was the prevalence of zero-sum games of deservedness (“grandma before inmates!”), which ignored obvious implications of geography and epidemiology: the idea that people in congregate settings, no matter who they are, face more risk, and that spaces that are jurisdictionally/institutionally set apart from society at large are, in fact, permeable to disease. This is going to be the main premise of #FESTER.
  7. The deservedness argument posed some difficulties in advocacy and organizing: does making the argument that jail populations are largely presumed innocent introduce the deservedness scale, which as Kovarsky and Garrett show was at play in the overall picture of relief? And, how to advocate short-term for vaccination while advocating long-term for releases?

Teaching Crimmigration to Criminal Procedure Students: Lessons from the First Year

My advanced criminal procedure course is, as far as I know, the first and only criminal procedure course in the U.S. to include a crimmigration unit. Following a formative semester as a visitor at Harvard, during which I audited Phil Torrey’s terrific crimmigration course, I decided that this was an essential addition–this blog post, which I wrote at the time, explains why.

At the time, I hypothesized that there were knowledge gaps in immigration, which were not completely closed since the Supreme Court’s decision in Padilla v. Kentucky (2010). I was not the only one; in this piece, Gabriel Chin discusses the professional toll that Padilla advising would take on defense attorneys, who would now have to specialize in immigration law. Even in Padilla itself, Elena Kagan–then the U.S. Solicitor General–spoke about her concerns that an entire cadre of professionals would now need to acquire expertise in an adjacent (and not particularly easy to master) field.

True, Padilla did not require defense attorneys to become full-fledged immigration law experts. It only required them to advise clients of the immigration consequences of their conviction if those were clear. The problem is that one needs to know at least something about immigration law to even identify the appropriate statutes (for example, is the person admitted or not admitted to the U.S.? in the former case, the law is in INA §237; in the latter, in INA §212.) You can’t know whether the answer is clear without understanding what the question is, and that in itself requires expertise. A big part of the wisdom, from a defense attorney’s perspective, is having the basic skills to understand whether the immigration determination is even within the attorney’s wheelhouse.

Since Padilla was decided, public and private criminal attorneys have adopted a wide range of approaches to close the knowledge gap. For the purpose of creating my module, I assembled two focus groups of friends from various areas of practice. Beyond two immigration experts (an immigration law prof and a lawyer at an immigration rights nonprofit) I had three prosecutors, one appellate attorney, three public defenders and two defense lawyers in private practice. Before practice-teaching them the modules I created, I asked them where they got their immigration law expertise. I got quite a variety of answers:

One prosecutor said that their office took immigration consequences into account when charging; they had an immigration unit staffed by experts. The other prosecutor said that the D.A. ignored all immigration matters and instructed them to proceed as if immigration consequences did not exist. Out of the defense attorneys, the appellate lawyer was unfamiliar with the field (this is unsurprising, as appellate lawyers would only rarely encounter it.) The bigger, urban public defender offices had immigration units in-house, staffed by experts. In one rural public defender’s office, one person at the office specialized in immigration law and became the office’s unofficial go-to “expert.” In another rural office, everyone learned a little and called immigration nonprofits when they needed advice. The private attorneys were lost at sea and would use published materials from nonprofits when advising their clients. Everyone professed great ignorance and panic at being entrusted with counseling clients on immigration consequences.

The focus groups conversations convinced me that there is great need to add the basics of crimmigration to criminal procedure courses–at least the advanced bail-to-jail courses that are taught to people seriously contemplating criminal justice careers.

What to teach

In shaping the curriculum, I consulted with Phil and with my colleague and friend Tally Kritzman-Amir on what to teach. I decided that the students needed to know what what would touch on their criminal practice (and if they wanted to know more about immigration law, they could take a specialized course.) As criminal attorneys they are most likely to encounter crimmigration when advising clients whether to plead guilty or when negotiating charge bargains, so they would need to be familiar with the most popular removal grounds–aggravated felonies, crimes of moral turpitude, and some of the specific removal grounds–and acquire the skill of ascertaining whether a particular criminal conviction satisfies any of these. Many interesting crimmigration topics, including a detailed history of the immigration code, the immigration removal procedure, detention and bond, and immigration protections, were left out of the curriculum. To facilitate learning, I broke the crimmigration unit into three modules:

Module 1: Background to crimmigration (including Padilla and science-based readings refuting the immigration-crime nexus and examining the emergence of IIRIRA and today’s removal grounds); The admissibility doctrine (distinguishing between admitted/deportable and non-admitted/inadmissible noncitizens, defining “conviction” under immigration law, knowing the consequences of these definitions and distinctions); the categorical and modified-categorical analysis (the basic analytical tool the students would be using in Modules 2 and 3.)

Module 2: Aggravated felonies (explaining what generic offenses are., focusing on the categories of “crime of violence” and “trafficking in a controlled substance”, and highlighting the difference between elements of a generic offense and circumstance-specific elements, such as loss to the victim.)

Module 3: Crimes of moral turpitude (explaining the category within and outside the context of immigration, practicing some cases); the specific grounds of drugs, firearms, and domestic violence

The choice to front-load the mechanics of the categorical analysis reflected the fact that, of all the material I teach in the course, this would be one of the most difficult skills to master, in no small part because the federal removal grounds are so thin, vague, and poorly drafted, and state law can so often be overbroad and abstruse. This was also the reason I chose to sequence the entire crimmigration unit after teaching double jeopardy and sentencing. I reasoned that, at this point in the course, the students would have mastered the art (hopefully taught to them in 1L criminal law) of breaking an offense into its elements. Before teaching double jeopardy, I provided them with a prerecorded refresher on elements of the offense, reminding them that this skill matters beyond substantive criminal law. This way, prior to studying the crimmigration unit, they would practice this skill when determining whether two offenses count as the “same offense” for double jeopardy purposes (under Blockburger) and when determining whether a particular fact must be alleged in the charging document and found by a jury beyond reasonable doubt (under Apprendi.) These two topics would also serve as a rehearsal before learning the categorical analysis and make it more comprehensible.

A note on terminology

The first question I faced was what to call the new unit. I automatically gravitated toward the term “crimmigration”, popularized in Juliet Stumpf’s seminal article. The term has gained considerable traction, becoming the title of César Cuauhtémoc García Hernández’s book and eponymous blog. But then I received a thoughtful note from a colleague who explained that, when Stumpf adapted the term, it was being used in white nationalist/neo-Nazi circles with racist and xenophobic connotations. Its portmanteau construction can also be seen as reinforcing a particular set of suggestions about immigration and criminality that we seek to reject–namely, that there is a nexus between immigration and criminality. My colleague suggested the colloquial alternative “crim-imm”, or the clunkier “convergence between immigration control and crime control” (which reflects, quite well, Stephen Legomsky’s wonderful piece about the asymmetric convergence between the two fields.)

My colleague’s comments were well-taken, and I gave them a lot of thought, but finally decided to keep “crimmigration” as the unit title. There’s value in introducing students to the field by the name the field is known, so that if they seek to know more, it’s accessible and available to them. I also think that terminology isn’t static–it changes over time, and there have been multiple examples of derogatory terms being redeemed and put into empowering use by the people they sought to oppress.

Which brings me to the second issue. Immigration law currently uses the term “alien” to refer to noncitizens (here’s a CIS primer on definitions). Several students emailed, feeling jarred by the statutory terminology, saying it sounded “racist” (I think they meant xenophobic or dehumanizing.) I know this sentiment is shared by many, to the point that the Biden Administration is poised to change the term. I confess that I’m not an enthusiastic convert to the terminology obsession, which does not show any signs of abating. I get it–I’m not stupid–words can create reality. But we’re imbuing words with much more power than they have, I think, and this constant cycle of the linguistic washing machine is diverting attention from more important matters. It reminds me of how, as a child, I heard adults around me say “she has a bad thing… they found something…” treating the word cancer as if it was Voldemort. If a horde of dedicated, progressive-minded Biden officials do a “find + replace” function on the immigration code and replace all instances of “alien” with “noncitizen”, but leave all the removal grounds intact and continue to deny basic Gideon rights to people facing permanent banishment from the country, the enlightened terminology is not going to cheer me up. And given that the zeitgeist is all about certifying only the oppressed for speaking about their own oppression, I am happy to tell you that, prior to my naturalization in 2015, I was an “alien” for fifteen years–an alien student, a nonresident alien with extraordinary abilities, a resident alien–and I always found the term humorous and not dehumanizing at all. If foreigners are dehumanized and marginalized in the United States–and they absolutely are–it’s not because of what the INA calls them; it’s because of what we are misled to think about them. Nationalists were not born with the term “alien” at hand. “Alien” means foreign; it was then borrowed to describe extraterrestrial life. Whatever “they” took, “we” can reclaim, for whatever value of “they” and “we.” In class, I use “noncitizen” when I talk (or, when relevant, “lawful permanent resident” or “visa holder”), and “alien” when I’m quoting legislature, and I leave it at that.

What to read

For this course, I use an electronic casebook hosted by ChartaCourse, which gives me great control ver my materials. I assigned a bit of Legomsky’s article, sections from the INA, and some key cases. The selection of cases presented some challenges, though. The categorical and modified categorical analyses, which are the cornerstone of crimmigration, were established in federal cases, Descamps and Mathis, both of which deal with portions of the Armed Career Criminal Act (ACCA.) This presented a dilemma. On one hand, I wanted the students to know that the categorical analysis will come in handy in a variety of federal legal contexts; on the other, I didn’t want to confuse them and muddle the issue by making them read cases that are not about immigration. I opted for omitting Descamps and assigning only the portion of Mathis that explains the analysis.

As to the rest of the cases, I had to be quite selective and a harsh editor. The cases come from various federal courts and from the Board of Immigration Appeals (BIA), and they often involve various issues that pertain to the immigration side of the case, e.g., adjustment of status issues or removal protections. For the limited purpose of criminal practice, the students don’t need to know that. There are also cases that deal with interesting but arcane immigration law sections, and the choice I made was to focus on the common deportation and inadmissibility grounds. I can already see how making the choice to teach these materials will require keeping abreast of the information in a field adjacent to my own with its own precedents, etc., but there are blogs and other good people working on this, and honestly, after Padilla, I do think it’s our responsibility to teach this.

Finally, my materials include one of the best helping tools for criminal lawyers: the ILRC reference table and notes. It is detailed and trustworthy but, as I found, not exhaustive. I’m trying to teach the students not to rely on the table as the be-all, end-all of crimmigration (even though it’s very useful to have on hand) in the same way that I was taught, when I learned statistics, how to calculate F-values and t-values by hand while also learning STATA. There is immense value in doing the exercise by oneself, and I wanted to put people on the path to proficiency.

Crafting problems

Since the second semester of the pandemic, I transitioned my classes to a flipped classroom model: the students receive readings and prerecorded lecturettes in advance. In class, I go over the basics, and the bulk of the time is devoted to solving problems in small groups. Oftentimes, my problems are shaped after real cases. This proved to be a bit tricky in crimmigration. The cases are very complicated and require serious paring down. They are also often BIA cases, which means there are lots of adjacent, ancillary issues to be resolved on the immigration front. This means the hypotheticals need to be carefully edited, and that the ones based on real cases cannot be the first problems that the students solve. I have had to come up with simpler, two-liner problems that the students solve, and then graduate to problems based on recent cases.

Basing the problems on real cases also presented a problem involving the hermeneutics of immigration law. Because removal grounds are so generalized and vague, and because it is difficult to tell, just from looking at a state statute, whether it is divisible or not, there’s an abundance of caselaw, precedent, and courtroom documentation that needs to be looked at to ascertain how to resolve the problem. In the context of a classroom exercise, it is essential that all the information the students need be within the four corners of the problem. So that, too, requires attention in fashioning the problems. And, of course, working through these hypotheticals can be frustrating to the students, because it is ultimately not where the heart of their practice will lie, and it requires them to visit an entire different world of legal meaning-making. Which brings me to the heart of the matter.

The heart of the matter

I think the frustration and incredulity that the students might encounter when studying this material comes from a pretty understandable source: after all, I am essentially teaching them how to twist and turn their main occupation to bypass the perversion that is immigration law. Rather than looking at what a defendant did and charge them with that, they now have to think ten steps ahead, consider what the feds might do, and craft the whole narrative of the case away from the truth if they are trying to avoid immigration consequences.

What mitigates this frustration, though, is the other component at the heart of the matter: I kept banging the same drum again and again in class–the fact that, across all places, crime categories, and legal statuses, immigrants commit less crime than the native born. I usually deeply dislike facile, oversimplified slogans, but in this case there’s robust social science supporting that, and I had to talk about that again and again because the perception of an immigration/crime nexus is incredibly pervasive and very resistant to modification–more resistant than any other myth of immigration. I think the students might feel better about learning how to perform this analysis if they know that the purpose is to prevent situations in which ancillary, collateral consequences eclipse the actual criminal process and frustrate its goals.

Stressing the moral imperative to take this so-called externality into account in criminal lawyering is important for another reason. That the categorical analysis is technical and ignores the facts of the cases creates the risk that class will become a glib game, akin to the fantastical hypos that are often part and parcel of teaching 1L criminal law. The somber, urgent quality that accompanies the perceived domestic crises (the prime example is the relationship between police departments and communities of color) can be absent from this unless personal stories of people are brought forth. And the absurdities need to be highlighted for people to feel that what they are doing is not just an intellectual exercise of overlaying one offense on top of the other, but a valuable effort to save families from falling apart.

Striking the right balance

Toward the end of the third module, I asked my students whether learning this material made them more or less confident about their ability to do this. Responses were mixed (even though they knew nothing about this analysis before taking the unit!). I’m not sure that’s a bad result. On one hand, per Padilla, you want the students to feel empowered to offer this kind of advisory to their clients–it is their constitutional duty. On the other, you don’t want them to be overconfident about their ability to clearly predict the immigration consequences of everything under the sun. In this respect, Padilla is too optimistic about the ability of a criminal lawyer to tell a simple crimmigration case from a complex one. Immigration law is ever-changing, very responsive to the blowing of political winds, and what my students are taught about immigration law might not be good law under a new administration. Rather than have them freeze in panic, I would like to empower them to take action: call an immigration lawyer or a nonprofit and consult. Because this isn’t going to be sustainable for every lawyer/client, I think that ultimately the answer to the problem of advising noncitizen clients should be a combination of two factors: the emergence of law school clinics whose job is to offer Padilla support to public and private defense attorneys, and the establishment of an excellent MCLE credit network that keeps criminal lawyers abreast of pertinent developments in immigration law.

If you are a criminal procedure professor who read this, feels inspired, and wants to teach my bail-to-jail course with my immigration materials, contact me (or contact ChartaCourse.)