Do what's right - Brownsville Herald: Editorials

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Do what's right

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Posted: Thursday, May 10, 2012 1:50 pm

The U.S. Constitution explicitly prohibits ex post facto laws, those that are applied retroactively. Congress violates that prohibition constantly, with impunity. So if a new law is enacted to right a wrong, it seems just that those wrongs shouldn’t continue to be enforced just because they occurred before the law’s passage.

Such is the case of Roselva Chaidez, whose case the U.S. Supreme Court has agreed to hear later this year. We hope the court takes the side of humanity, and gives her appeal full consideration.

Chaidez broke the law and she admitted it. The implicit question before the court will be whether or not her final punishment fits her crime.

Many people see little harm in telling a small lie to benefit themselves or others, especially when it comes at the expense of a big insurance company. After all, everybody hates them, right?

Chaidez in 2004 pleaded guilty to insurance fraud, admitting that she falsely claimed to be a passenger in a car wreck. Her attorney advised her to make the plea.

Unfortunately for Chaidez, that advice brought a punishment that was unexpected, and more severe than anything she might have expected. She is a Mexican citizen, but had lived in the United States for more than 30 years and had legal permanent resident status. When she applied for U.S. citizenship in 2007, officials noted the plea and instead of processing her citizenship application, began deportation proceedings.

Chaidez wasn’t aware her plea could get her thrown out of the country that has been her home most of her life.

Since then the high court has ruled that immigrants’ constitutional right to effective counsel is violated when they aren’t informed that a guilty plea could lead to deportation. Chaidez’s case asks the court to decide if her deportation should continue simply because her plea occurred before the Supreme Court decision, or if that decision should be applied retroactively and include her.

The Constitution prohibits both Congress and the states from enacting ex post facto laws — laws after the fact. Scholars agree, however, that the clauses are meant to prevent punitive measures, such as charging someone with breaking a law that was enacted after the action took place.

Still, Congress frequently passes tax laws and other measures retroactively, and is rarely if ever challenged on that obvious constitutional violation. In addition, the bulk of the Constitution and other founding documents support the assumption that retroactive application of laws that correct wrongs or guarantee human rights and freedoms is preferable to perpetuating the wrong simply because the legislation, or court decree, wasn’t made until the wrong was exposed.

Certainly, retroactive application of such corrective measures itself could create problems. For example, if certain drugs are decriminalized, then what happens to the thousands, perhaps millions, of people who already are imprisoned for possessing those drugs?

Such issues will have to be addressed if and when that happens. Cases of immigrants who weren’t properly informed of the consequences of plea bargains can be handled individually.

Sometimes the need for a law isn’t known until someone has been wronged; that appears to be the case for many immigrants, and the logic behind the Supreme Court’s initial ruling that information that immigrants must be informed that deportation can be a consequence of their cases. It seems equally logical that timing alone should not allow an injustice to continue.

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