Arrest, Probation and Plea Deals!

Firstly, it is important that you do every thing possible not to put yourself in a position where you are arrested! If you have done something really quite wrong, it is only fair that you are arrested for the crime and face the consequences. However, before you sign documents provided by the Police or you volunteer to provide your side of the story or make a statement, request to consult a family member and/or an attorney. Remember if you cannot afford an attorney, the Judge will have one appointed to your case. Be patient. It is better to be patient than to have the Police interpret your statement into their words or ask you leading questions that may incriminate you in some way. Generally speaking we must trust the Police and there are many men and women in uniform that we should all be proud of. However, there are also those that abuse their power; some may simply not like you because you happen to be drunk and stupid and said nasty stuff under the influence, some may say you were resisting arrest when you may have simply expressed shock at being placed in hand cuffs or the Police may feel you did not give a statement about a friend or family member etc. There is no logic in what you do under the influence of alcohol and/or drugs but sometimes there is also no logic in the way some police handle their affairs particularly those who join the force to exert their authority and abuse power. So rather than being keen to tell your story (which would be the right thing to do under normal circumstances), wait for your family member and/or your attorney to guide you through this phase.

Secondly, your attorney should guide you but not all attorneys are created equal. Whilst it is true attorneys charge a sizeable fee, many are worth it! There are however, some attorneys who simply do not work in your best interest no matter what you tell them or pay them - a few attorneys have many clients and work through the same prosecutor’s offices and so they could work on trade offs. Yes, we don’t like to believe this to be the case, but it has been known to happen. Or, if you’re a juvenile, some attorneys will take the case and then tell your parents later that this is just a juvenile case, nothing stays on the record! Technically speaking yes, that is true but realistically no, somewhere down the track whether you are rightly or wrongly accused of a crime, particularly one that is horrific, all these juvenile records will come up! So don’t listen to that rhetoric. Understand that there are some attorneys who will convince you to accept the charge rather than fight it because once they have the case (and your money), they will then try to convince you that the police have too much evidence against you or that the police have a charge with X amount of years and therefore, by taking a plea deal you avoid all sorts of problems and you are free on probation and can move on with your life. All this, even though nothing new has come up with your case and you provided all these facts at the time you spoke to the attorney and were advise that your case would not stand in court!

Some attorneys advise you that a non-conviction is not guilt. Wrong. Remember, plea deals (non convictions) are considered a guilty verdict no matter what you are told! (Plea deals are great for those that have committed a terrible crime and decide to take a lesser charge in return for a guilty plea but for those that are innocent or believe they are guilty but have been saddled with the wrong (higher) charge, make sure you fight it because plea deals are a fallacy!) If you want to understand the "plea deal" process, visit a library and look through books offering advice, talk to free legal aid services, and importantly look up the US Department of Justice web site at http://www.ojp.gov/bjs/ and read there the statistics of how many cases prosecutors take cases to a jury and how many go through plea deals and listed as "convictions" in their statistics, even though you think you weren’t guilty but accepted the plea deal as a quick fix. Please be aware that there are dire consequences to those not holding US citizenship and accept plea deals for a felony or a crime that the government believes falls within their criteria of moral turpitude. Read separate section on immigration and arrest records by clicking here.

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"Congress also eliminated funding for programs that were attempting to provide legal representation for the 3,500 men, women and children on death row at the stages of review where no lawyer is provided. And the promise of Gideon has never been realized. Courts have held that lawyers who are asleep, drunk, under the influence of drugs, or fail completely to investigate and defend their clients are sufficient "counsel" for purposes of the Sixth Amendment."

Keep the Dream of Equal Justice Alive by Stephen B. Bright 1999

If you accept a plea deal and later decide you simply got a bad deal and you didn’t understand the consequences of the `deal’ – particularly when you later find out that you are very limited in finding gainful employment, even studying at some universities, finding housing, etc. – it is at most times too late to reopen the case! The current system will not allow you to request to reopen your case if it is approximately 3 years after the event and in any event it becomes very difficult to challenge the original outcome because the assumption is that you entered into a plea deal so you must have known the consequences. Even if you later discovered that some key information was not provided at the time of an arrest or sentencing stage, it is very difficult to request to reopen a case. It is also very costly.

The most important thing to understand is that you must get a good attorney – some one that you have recommendations for and have knowledge of. Don’t just pick an attorney and assume that you are going to get first hand representation! You really need to do your homework when it comes to choosing an attorney.

If you are not guilty or if you believe the police are charging you with the wrong crime, fight the case unless you have a strong feeling that the area you live in may have a jury that could be biased or you have special circumstances which you believe may lead to a biased jury. Some will disagree with the statement, but when it comes to your life, do not take any chances! For example, if you are a minority in an area that has very few minorities and there are racial tensions in that region, don’t expect you’ll definitely get an unbiased jury! You may have no choice but to accept a plea deal or to get a high profile lawyer. Most important thing is dialogue - talk to people, talk to attorneys and to your family and friends

If, after appointing and paying for a lawyer, your lawyer later tells you that he/she cannot keep dealing with your case and he wants you to take a plea deal and you have a belief that this is not in your interest and not the advice which was provided to you initially – and nothing has changed since your lawyer took on the case (i.e. no new evidence or your lawyer has not been put in the unfortunate position where you have not told him/her the truth from the beginning), then you must not take a plea deal but seriously consider the possibility of getting yourself another lawyer. At the least talk to some people that you can trust and who know something about the subject. Then make an informed decision. It is therefore, important to find a lawyer that will work for you; not one that is interested in being paid and then decides to cut the case short or let it keep going and then says he/she does not want to fight it in court or it will cost you more money, etc. This is the worst kind of lawyer you could have appointed and they do exist! Note however, there are more good lawyers than bad, so find a good one!

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Some other matters you need to know:

All in law enforcement are not the same. Some can be aggressive, vindictive and will go after you particularly if you have given them some reason in the past to do so - example, if you were difficult whilst at high school and a juvenile; a few police will wait for you to reach age 18 before they’ll think of getting even. Some may just not like you. On the other hand you may have some really good police around you. The important thing is that you must be patient, calm and do not make matters worse by talking down to the police. Instead wait for your family/lawyer to help you through the issue.
All lawyers are not the same - it is important if you are getting a lawyer, you go by references and a gut feeling. Go see several lawyers before making an informed decision and be prepared to change lawyers if you aren’t satisfied with the way things are going! Yes it is more money, but this is your life. Remember, some lawyers will try to get you to settle a case which should have gone to a jury. It is vital you research this area thoroughly.
Despite what lawyers and even Police tell you about probation it is not what it is cut out to be. Probation officers generally work closely with local police and prosecutors (and don’t let anyone else tell you otherwise). They can (with police) enter your house (and or send police) even without a warrant if they want to check on you. Worst still, if they need to "get you" for something, they will and most have the capacity to. Of course they are supposed to check on you but not all work in your best interest to rehabilitate you. In some instances, police/probation officers raid houses and by the time your family/attorney check on this, you are in jail and therefore, the family/attorney does not want to unduly antagonize the bureaucracy. This is not usual but it does happen and if they raid houses without warrants, they usually do it after it gets dark. There is very little compassion in the system because most in the general public believe that all in law enforcement protect us – the reality also is that unless it affects you, you presume all is well. It is only when you encounter personally a grievance with the law enforcement community – how they have dealt with someone in your community or amongst your loved ones, that you begin to realize that yes, there are problems in the criminal justice system.
Being on probation is not free! The probation system charges you a monthly fee for being on probation. This is in addition to court costs. So, think twice about plea deals and probation if you are not guilty or believe you are being saddled by the wrong charge. In instances where you are particularly fearful of the criminal justice system because they have given you a wrong charge, or the system has been vindictive (yes officers have been known to collaborate one another’s stories), find out through your attorney if there is a way that you can go on administrative probation to another city/state where you have family or friends and where you can do something productive such as study or work, provided your criminal record does not create barriers for you. Sometimes the courts will transfer cases and as the probation officer in the other county would not have a close relationship with law enforcement in your current area, probation may go much more easier than you remaining in your local area where local police may work in cohorts with the local probation office to get you to "violate" your probation which means the sentence of the original charge will stand. Some will try to charge you with "violating" your probation only to get you into jail
• Jail is not easy for any one however, added to the usual problems of incarceration you should be aware that the cost of telephone calls from jail to your family or lawyer are very high. In the case of county jails your family or friends have to accept reverse charge calls and usually the call costs around $3.00 for a 20-30 minute call if you are in the local area. Items for purchase are also generally expensive; if you get cold you will need a sweat shirt or track pants and for this you need to have money - be ready to pay almost double the price of your local K-mart store! (Many jails and prisons are run by private for profit companies.)

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FOR THOSE HOLDING GREEN CARDS WHO MAY BE DEPORTABLE DUE TO THEIR CRIMINAL CHARGE

In the case of immigration detention - that is once you have been dealt with in the criminal justice system for a felony charge and some other charges which may be treated as "deportable" - you are usually taken over by Immigration and Customs Enforcement (ICE) and treated as a deportee, whereby the Federal Government tries to deport you but holds you in one of their detention centers pending clearance from a Federal Judge to agree to the deportation. Until that happens, you stay in a detention center and this could take months unless you have an immigration lawyer to deal with your case. If you are in a local immigration detention center, the cost of phone calls and purchase of other items is similar to a county jail cost. Under immigration law however, the government can send you to any of their detention centers and more and more detention centers are privately managed. If you end up in a privately managed immigration detention center your cost of calls will much higher. In the case of the immigration detention center in Albuquerque New Mexico, the cost of a reverse charge call for approximately 15 minutes is $19 for a detainee to call from Albuquerque to another US city like Miami. Yes, you heard right ... it is $19 for an immigration detainee to phone their family in another state for a 15 minute telephone call. Again, remember you are dealing with privatized for-profit facilities.
Despite what your criminal lawyer may tell you about non-convictions (plea deals) in the criminal court not having an impact on immigration, rest assured it does in the case of felonies and some other crimes involving "moral turpitude"! (More and more criminal attorneys are getting to understand immigration policy better so hopefully, they are providing better advice to their clients.) So be very careful with your criminal case as it could have an impact on the status of your green card i.e. the federal government could try to deport you and the process of fighting deportation is cumbersome and expensive. It will cost you a minimum of $12,000 through an immigration attorney to fight a basic immigration case. Plus you languish in a federal detention center whilst it plays out through the courts. (Immigration attorneys usually do not provide "free" consultation, most charge $125-300 in consultation fees alone but it is important to consult at least 2-3 attorneys (and invest $500-800 in consultation fees) rather than being stuck with the wrong attorney or someone who you are not comfortable with).

It is important that you understand that even though you may have come to the USA when you were very young, if you still hold a green card as an adult and not US citizenship, you will be treated differently when it comes to the law i.e. it will not matter whether you and your family worked many years and paid taxes in the country or that you are "Americanized", the Federal Government will try to deport you and so it is very important that you do not accept the wrong criminal charge or a plea deal for that charge if you are in fact innocent, otherwise there may be consequences in immigration court. If in doubt, talk to an immigration lawyer and if you are already in jail as a result of an arrest, ask a family member to see an immigration lawyer so they can find out what solutions are open to you.

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Read information about alternatives to detention suggested in a report/paper in July 2000 at the following web address: http://www.vera.org/publication_pdf/aap_speech.pdf

If you can’t afford an immigration lawyer, there are some free legal services (not managed by government but non-profit organizations) in operation but it is extremely hard to access them but if you are prepared to remain in detention, at some point you will be able to have some free legal assistance. (Note that the Federal Government does not provide you with an attorney if you can’t afford one in immigration court as they do in the criminal justice system. There is a belief that you are very much on your own in the federal immigration system.)

Even if your criminal charge is ultimately dropped or your conviction vacated, ICE can try to deport you. It is vital that you speak to a lawyer or someone that is very familiar with immigration law.

CLICK HERE to read the section on Immigrants