A Pardon is not Enough

Two news items ran across my desk at about the same time this past week, and both made an impression on me. One was a press release announcing that Governor Paterson of New York was convening a panel to determine whether certain lawful permanent residents with criminal convictions might deserve a pardon in order to avoid deportation from the United States. The second was in the local paper’s gossip column, and addressed the recent conviction of actor Michael Douglas’s son for selling drugs.

I very much welcome Governor Paterson’s decision. It’s a compassionate and just thing to do, and I know that he was motivated by the compelling case of Qing Wong Hu, which was posted below in March 2010 (“Once and Aggravated Felon, Always an Aggravated Felon” and “Immigrant Released After Pardon”). According to the press release, the Governor would consider the cases of those who have minor or old convictions, and have shown extensive efforts toward rehabilitation. He affirmed that he wanted to inject fairness into an “embarrassingly and wrongly inflexible” system that expels immigrants without discretion, without considering the circumstances of a person’s life or family, or even holding hearings to consider the possibility that deportation might be unwise or unjust.

Unfortunately, I also realize that the Governor’s proposal will affect few of my clients because under immigration law, a governor’s pardon (or a president’s pardon for that matter) will not eliminate a criminal conviction for immigration purposes if the offense involves a controlled substance (though it could eliminate a violent crime!). Most of my clients face removal from this country for drug-related convictions. Notwithstanding this legal “technicality,” dozens upon dozens of immigrant detainees at the detention facility in Batavia, where I work providing “Know Your Right’s presentations, have been requesting Governor Patterson’s address and the “form” for a pardon in the past week. There is no form, and unfortunately, many of these men have been given only a false hope.

Drug crimes are considered the worst of the worst. The president declared a war on drugs some 22 years ago, and despite the fact that this country is losing virtually every battle in that war, Congress continues its zealous policy of incarceration and deportation, while giving short shrift to rehabilitation and forgiveness. Permanent residents of the United States pay the highest price for our myopia. The U.S. Supreme Court reiterated its concern about the harshness of deportation, which it likened to exile or banishment, in its recent decision according a 6th Amendment constitutional right to noncitizen defendants to ensure that they received sound legal advice about the immigration consequences of a criminal plea.

There is no immigration reform proposal that I have come across which addresses the injustice of summarily deporting an immigrant for a conviction. As I have repeatedly stated, I believe we should roll back immigration law to a time where most “green card” holders with drug related convictions could present their equities to an immigration court to avoid deportation. The best proposal currently comes from a group of Democratic legislators and is called Real Enforcement with Practical Answers for Immigration Reform (REPAIR). It proposes limiting the definition of “aggravated felony” under the immigration law to actual felony convictions. This is a logical and positive step, but it would still not eliminate the severe consequences for many of those convicted of a controlled substance offense.

The sad reality is that drug addiction almost inevitably leads to criminal behavior such as the possession of controlled substances and the sale of drugs, which is often done to support the habit. Most of my clients, like hundreds of others in our criminal justice system, are not part of any international trafficking cartel or violent street gang. They are substance abusers whose addictions have never been adequately treated and have led them to a criminal act.

This brings me to the second article I mentioned earlier—the story of Cameron Douglas, the 31 year old son of the actor Michael Douglas. Earlier this month, he was convicted and sentenced to five years of imprisonment for selling drugs. His father commented publicly and stated the sentence would serve to save his son’s life. The young man was either going to end up dead or someone was going to kill him, the elder Douglas stated to the media. He added that Cameron would rebuild his life, and the father would support the son through his ordeal. He also took responsibility for his son’s addiction by admitting he’d been an “absentee father,” too concerned with building his career. Ultimately, Douglas said that his son was a great young man despite his mistakes and the disease of addiction from which he suffers.

I was struck by this little piece because it reminded me of my client’s families and the countless statements I’ve heard from the witness stand when a parent, spouse or sibling attempts to explain to an immigration judge why their relative did not deserve deportation after serving their time for the crime he or she committed.
I guess I feel about some of my clients the way Michael Douglas feels about his son. Many people deserve a second chance.