A problem of proof: how routine destruction of court records routinely destroys a statutory remedy.

INTRODUCTION I. A BRIEF OVERVIEW OF CRIMINAL DEPORTATION IN THE UNITED STATES A. The Evolution of American Deportation Law B. Modern Trends in Criminal Deportation II. CALIFORNIA PENAL CODE SECTION 1016.5 III. CALIFORNIA PENAL CODE SECTION 1016.5 IN PRACTICE A. Recent California Supreme Court Cases Interpreting Section 1016.5 B. Missing Plea Hearing Transcripts: A Problem of Proof IV. IMPROVING THE SECTION 1016.5 REGIME A. The Case for Reform B. Suggested Improvements 1. Record retention 2. Prosecutorial discretion 3. Procedural improvements a. Increasing the burden of proof b. Evidentiary hearings and cross examination CONCLUSION INTRODUCTION

Imagine the following scenario. Smith invites Jones to live as a boarder in his spacious home upon the condition that Jones will pay his share, keep up his end of the chores, and abide by the rules of the household. Jones is thrilled to have found such a nice place to live and signs the lease without a moment's hesitation. For a time, things go well; domestic affairs run smoothly. Then, one day, Jones steals the toaster oven from the kitchen and sells it for some extra cash. Smith wakes up the next morning hungry for a toasted English muffin only to find the appliance gone. He calls a house meeting where he confronts Jones, but Jones is evasive. Smith tells him that if he confesses to the theft, he will simply have to pay back the household for the toaster. Eventually, Jones confesses and buys a new toaster oven for the house. Time passes, and although things in the house are tense for a while after Jones's indiscretion, he goes on to become a model housemate. When he gets married, his new wife moves into the house with Smith's blessing. They have a baby girl, and Jones adds a nursery to the east wing of the house at his own expense.

Twelve years later, on a Tuesday afternoon like any other, Smith calls a house meeting. He tells Jones politely but firmly that he is being kicked out of the house. Caught off guard and with nowhere else to go, Jones asks what he has done to deserve eviction. Smith asks Jones if he remembers the toaster he swiped a dozen years ago. Jones says he does, but only vaguely. "I told you at the time that you had violated the house rules and it was grounds for eviction," says Smith. "I've let this slide for a while because I've been busy. But time's up. Be out by Friday." Jones says he doesn't recall hearing about that provision of the lease, and, had he known, he never would have admitted to the theft. Smith admits that while he doesn't recall exactly what he told Jones at the house meeting, he is sure he would have reminded Jones about the possibility of eviction. In any case, he says, it doesn't matter. The lease says what it says and Jones must get out. His wife and kids, however, have done nothing wrong and can stay if they wish, although Jones will never be allowed past the driveway, even for a visit. Desperate for a reprieve, Jones remembers that Smith takes meticulous notes of house meetings, in case of future legal troubles. "Let's see the notes from twelve years ago!" he shouts. "If you didn't tell me about this eviction business, I should get to stay." Smith responds, "That's a fine idea, but be serious. I can't be expected to keep notes for so long. I shredded them last August." As Jones takes in the gravity of his situation, Smith calls the house meeting to a close. "I feel for you, Jones. But you just don't steal your landlord's toaster."

Simplified as it may be, the above scenario fairly depicts the state of many criminal deportations under current U.S. immigration law. Of course, there is nothing novel or surprising about the fact that states deport noncitizens who have committed crimes. Criminal deportation has legitimate justifications including deterrence, retribution, incapacitation, and even a desire to bolster public support for immigration more generally. (1) But theory is different from practice. In practical application, significant problems and inefficiencies arise as the immigration system interacts with the criminal justice system. Indeed, in discussing the two bureaucracies some observers have noted wryly, "One system is profoundly troubled; the other is a disaster. Criminal defense lawyers and immigration attorneys might disagree about which system deserves which label." (2)

Problems in the two systems affect an increasing number of people; the sheer number of criminal deportations has exploded in the past two decades. In 1980, fewer than 500 of an ...

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