Abstract

This Note argues that the Arizona Constitution's right to assistance of counsel" should provide non-citizens with important protections regarding plea bargaining. In short, the Arizona Constitution should be interpreted to allow a noncitizen to withdraw her guilty plea if her defense attorney knew or should have known that the defendant was a non-citizen, and the defense attorney gave the non-citizen misleading or no information in regard to the immigration consequences of that guilty plea.

This Note is organized in the following fashion: Part I describes the scope and nature of the problem non-citizens confront when they face criminal charges in Arizona's courts. This Part documents Arizona's large non-citizen population, the very high percentage of criminal cases which are resolved through guilty pleas, and crimes for which a non-citizen may be removed from the United States. It demonstrates how the dangerous intersection of criminal and immigration law often results in unintended outcomes, at least from the point of view of the noncitizen. Part II details federal case law on the issue. Most federal courts reject the idea that the U.S. Constitution creates a duty for defense counsel to inform noncitizens of the consequences of guilty pleas on their immigration status. A minority of federal courts have held, however, that attorneys do have such a duty. Part III considers Arizona case law on the same issue. Arizona courts have followed the federal majority position. Part IV describes the decisions of state courts which have come to the opposite conclusion, holding that, in some cases, defense counsel has an obligation to inform non-citizen defendants of the immigration consequences of a guilty plea. Part V argues that Arizona should follow the lead of other state courts and find that the Arizona Constitution effective assistance of counsel clause requires that a defense attorney inform a non-citizen client when a guilty plea may affect her immigration status.

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