Lawyers for Immigrants: Why California Must Lead the Way

Today, it is widely accepted that a person charged with a crime has the right to an attorney at public expense. But this basic right did not come easily.   

It may be surprising to learn that California actually pioneered the public defender system in the early 1900s. Over the next few decades the rest of the nation would follow, but California was the first to recognize that our criminal justice system could not be just without providing equal access for rich and poor.

Today, nearly a century later, California finds itself again with the opportunity to making justice a reality for all, not just the few, this time in the immigration system.

State and local leaders are currently considering proposals to provide legal representation to people facing deportation. Some counties, like San Francisco and Alameda, have already approved visionary programs to ensure that people fighting their deportations get a fair day in immigration court. Sparked by the success of New York City’s New York Immigrant Family Unity Project (NYIFUP), similar programs are also gaining traction in other parts of the country. In fact, the New York governor’s office has already established a fund to replicate NYIFUP statewide.  

The concept is simple: like in the criminal system, when the government brings a case against immigrants, we should give people a fair chance to fight the charges against them and present their claims. Unfortunately, that is not what currently happens. Instead, green card holders and other long-term residents, refugees, children, and other immigrants with legal claims to remain in the country must fight their cases alone, facing a trained prosecutor on the other side.

Yet we know access to legal representation can mean the difference between immigrants being able to stay in the country and being torn from their families and communities. In California, detained immigrants who have legal representation are five times as likely to win their cases compared with those who go it alone.    

Similarly, before the creation of public defender systems, the odds were stacked against low-income people accused of crimes. California led the way for a nation-wide change to recognize that the government must provide indigent defendants with legal representation.

It started with California’s first woman attorney, Clara Shortridge Foltz, who first proposed the concept of the public defender in 1893. Foltz was concerned about the imbalance of power in the criminal justice system, where low-income defendants faced off against experienced government prosecutors with the enormous power of the state at their disposal. She famously said, “For the conviction of the accused every weapon is provided and used, even those poisoned by wrong and injustice. But what machinery is provided for the defense of the innocent? None, absolutely none.”

Fortunately, the leaders of Los Angeles listened: in 1913, the City opened the first public defender’s office in the nation. Other jurisdictions followed suit, including Alameda County in 1927 under the leadership of then District Attorney Earl Warren.

Warren went on to become Chief Justice of the U.S. Supreme Court, bringing his personal experience with the public defender’s system to Gideon v. Wainwright, the 1963 case that brought to the rest of the country what California counties had voluntarily done decades earlier.

Deportation proceedings and criminal cases are similar in the challenges they pose when people aren’t given access to counsel. In both, the government brings its full power to bear against one person. In the words of Foltz, every weapon is provided and used by government attorneys seeking to deport someone, even those “poisoned by wrong and injustice.” But what help is provided to those who face wrongful deportation, even young children? “None, absolutely none.”  

Moreover, deportation proceedings like criminal cases have grave consequences for life and liberty. The government has wrongly deported people with valid asylum claims to nations where they face certain death. The government has wrongly deported veterans who served this country and have a legal basis for citizenship, unjustly tearing them from the lives they have built here and the communities they call home.

Finally, immigration law and criminal law are complicated and require extensive fact gathering. For these reasons, California state and local governments cannot rely on volunteer attorneys to fill this void. Nor can we restrict access to justice to only some immigrants. We tried both approaches with criminal cases. It did not work then and it will not work now. To be just and fair to all and to prevent wrongful deportations, we must provide effective legal representation to everyone facing the immigration system alone.

California helped reshape our national understanding of justice in our criminal courts. As New York and other cities and counties throughout the country do their part, it is time for California to step up again.

Jeff Adachi is the San Francisco Public Defender. Natasha Minsker is the ACLU of California Center for Advocacy and Policy Director and a former public defender.