Last week, a U.S. District Court judge, Dolly M. Magee, made a historic ruling granting legal aid to mentally ill or mentally incompetent immigration detainees. This is the first time that there has been a right to counsel for any class of immigration detainees, so the step is quite symbolic and hopeful.
Unlike in criminal proceedings, defendants in immigration proceedings do not have a Constitutional right to counsel at no cost. This is due to the fact that, technically, immigration offenses are civil offenses, and immigration detention is civil detention, and is not meant to be punitive in nature. Immigration detainees may retain private counsel, and in some cases, may be represented by non-profit legal organizations, but they are not assigned a public defender as are indigent criminal defendants.
In the past, detainees who have been declared incompetent to stand trial have languished in detention limbo for months and years at a time. A story in the LA Times last week reported that Judge Magee based her finding on disability law tenets, which require "reasonable accommodations" for mentally disabled defendants. A new federal policy will extend the ruling to apply to detainees nationwide.
The lawsuit was brought by American Civil Liberties Union, Public Counsel Law Center, and other organizations, on behalf of a number of plaintiffs with a range of mental disorders including schizophrenia and severe depression.
Jose Antonio Franco-Gonzalez, a plaintiff with an exceedingly low IQ and an inability to understand legal proceedings, spent almost five years lost in the system, in detention, after a judge declared him incompetent to appear pro se. Gonzalez is now being represented by Public Counsel.
According to the new ruling, this type of situation where mentally incompetent detainees remain indefinitely in detention will be avoided in the future, as detainees who are declared incompetent will be immediately assigned to a court-appointed attorney who may pursue bond. The new policy also requires that detainees with serious mental disorders are guaranteed a bond hearing within 180 days.