Unjust Incarceration Raises Questions of Fairness and Due Process

By Ryan Masaaki Yokota

In late October of 2003, a Filipino friend of mine, Carlo Manalang, returned from the Philippines from what he thought was a typical trip to visit his family, but was shocked upon returning to be detained by immigration officials who interrogated him for nine hours. After this processing, they released him on his own recognizance, with a letter to report to the INS on October 29th. In compliance with this letter, he reported to the INS on October 29th, at which point they detained him, and have held him in Santa Ana City Jail for the last three and a half months.

Carlo’s situation is an outgrowth of an April 2003 Supreme Court decision Demore v. Kim that ruled that legal immigrants who had committed “aggravated felonies” can be held without a hearing and deported, even if they do not constitute a “flight risk.” This Supreme Court decision essentially upheld a 1996 Immigration Law passed by Congress in the context of the anti-immigrant fervor of that time, which sought to expedite the removal (i.e. deportation) of immigrants who had committed a crime punishable by at least a year in prison.

Carlo, who had committed a felony assault around 1993 at the age of 15, had been tried as an adult for his crime, and because of that his record was not sealed upon turning 18. Now, ten years later, even after having served his time for that charge, this 1996 Immigration Law has come around to affect him once again. Thus, bound up in Carlo’s case, are key issues of the criminalization of youth, the erosion of civil rights, and the development of a two-tiered system of justice where immigrants are accorded differential rights from citizens.

In terms of the issues of the criminalization of youth, there has been an increasing move on the part of state and national legislatures to punish youth for their mistakes instead of using the court system as a means in which encourage reform and rehabilitation. The primary example of this in recent times was the “Juvenile Injustice Initiative” passed in California in 2000. This legislation had the result of increasing the means by which prosecutors could try youth as adults (including further opening youth up to “three strikes” laws and possible death penalty charges), and also increased the sentences of youth for certain crimes. In many ways, despite the fact that Carlo has reformed his life and for the majority of the last decade has kept to the straight and narrow, his prosecution as an adult kept his record from being sealed and precipitated his current incarceration.

Yet even beyond that aspect of Carlo’s case, the 1996 Immigration Law challenges serious civil rights issues, including principles of ex post facto, “double jeopardy,” and habeas corpus, enshrined in the principles of the Constitution.

In terms of ex post facto, the constitutional principle that is supposed to guard against declaring an action a crime even after the action has been committed, while Carlo’s actions were clearly a crime at the time that he committed them, the crime was not a deportable offense at the time, and now the additional punishment of possible deportation is being added on as a sentence for his crime. Ex post facto laws, as Alexander Hamilton said, have been one of “the favorite and most formidable instruments of tyranny,” and this law, aside from eroding one of our fundamental freedoms, also erodes the role of law as a deterrent to a crime. In other words, if Carlo had known that the crime might result in his deportation, one can ask the question of whether or not he would have committed it in the first place.

In terms of “double jeopardy,” the principle that no one may be tried twice for the same crime, Carlo’s case demonstrates that despite the fact that he had served both his jail time and probation for the 1993 offense, the deportation proceedings being held against him in effect constitute a second trial against him, and seem to constitute a blaring demonstration of the questionable nature of this law. In many ways this law extends the previous punishment against him in a way which seems to conflict with the 5th Amendment which states: “. . . nor shall any person be subject for the same offense to be twice in jeopardy of life or limb.”

Even further, the length of his detention raises serious questions about habeas corpus, in that he has now been imprisoned for over three months without the possibility of release on bail. With the Demore v. Kim decision (which was a contested 5-4 decision at that), Justices Stevens, Souter, Ginsberg, and Breyer dissented from the majority opinion, saying that the decision “forgets over a century of precedent acknowledging the rights of permanent residents, including the basic liberty from physical confinement lying at the heart of due process.”

All told, Carlo’s case is a microcosm of the issues of youth incarceration combined with issues of immigrants’ rights. In many ways the most challenging aspect of these issues, however, comes in the post-9-11 context that has sought to further codify and define a separate set of rights for citizens on the one hand and immigrants on the other. These recent laws and decisions have dangerously darkened the prospects for immigrants, who have been the very foundation of this country. In this respect, we should give pause to consider that “we, the people,” do not allow for the setting up of a relative standard of justice for immigrants simply because they arrived to this country later than we did. To do so is an insult to all the people, both citizens and immigrants, who have died defending the freedoms and ideals that we most hold dear.

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