Criminal Defense of Immigrants


§ 11.40 i. The Client is Clean and Sober

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If the client is not an addict or alcoholic, that fact alone is a favorable equity since so many defendants suffer from chemical dependency.  An astonishing proportion of criminal offenses is related to drug addiction or alcoholism.  If the client has had one or more years of recovery, this factor can be portrayed as a favorable equity because the client has obviously turned around a difficult life, and has enough of a track record of success that it is reasonable to believe recovery will continue.


It does not matter what wonders counsel works in court if the client is currently an addict or alcoholic who is not clean and sober or making an effort at recovery.  It is only a matter of time before the client’s new arrest will invalidate all of it.  Under these circumstances, it is worth neither the client’s money nor counsel’s time to seek post-conviction relief.


Additionally, if the client has been in recovery for less than a year, the case is difficult, for many relapses occur during this time and courts and prosecutors will rightly regard short-term recovery as somewhat tentative. 


Before investing time and money in a difficult effort to erase criminal convictions or sentences, it is prudent to screen the client for current addiction and alcoholism and to reject any case in which it is present unless the client first enters recovery, either through a residential or out-patient chemical dependency treatment program, or through an intensive twelve-step recovery program.  It is true, however, that a fresh appreciation of the reality of permanent banishment away from home and family can be part of an intervention in the client’s life sufficient to assist him or her to crash into the bottom of their addiction, and begin genuine recovery.  It may be difficult to discern the difference between someone who is merely appearing to be serious in order to save their residency here and someone who has honestly had enough of drinking and/or using drugs.  If that is the case, it may be wise to seek professional assistance to evaluate the degree of addiction and the resources necessary to enable the client to recover before making a decision whether to pursue post-conviction relief.


                When an active addict consulted me, I spent the balance of our time emphasizing the indispensability of recovery to his chances of remaining in the country.  I drove him and his father to the best local chemical dependency recovery in-patient program for evaluation.  The urgency of the immigration threat, in fact, can improve the chances of successful intervention and motivation of the client to enter chemical dependency recovery, perhaps saving his or her life.


                The reality is that the number one issue for the addicted client is to recover, and the immigration or criminal problems are secondary.  Wherever the client resides, unless s/he is able to recover from the addiction, the future holds only jails, institutions, and death.  The addiction must be addressed prior to embarking on a quest for post-conviction relief.