The Judicial Ethics Forum (JEF)

The Maryland Judicial Ethics Committee has issued an opinion advising that a judge may not ask a criminal defendant to divulge the defendant’s immigration status at sentencing or a bail hearing. Maryland Advisory Opinion 2008-43. The Committee emphasized that it was not rending an opinion on whether asking about immigration status violated substantive law. The Committee assumed that, as a matter of substantive law, a judge can consider a defendant’s immigration status if properly presented to the court. However, the Committee stated that asking about immigration status may implicate the privilege against self-incrimination, noting that “the general practice of Maryland trial judges is not to inquire of a defendant at sentencing except to clarify a matter presented and to invite the defendant to exercise the right of allocution.” The Committee also noted that a state statute requires that, before a guilty plea, the court, the state’s attorney, or the defense attorney must advise the defendant that, by entering the plea, the defendant, if not a United States citizen, “may face additional consequences of deportation, detention, or ineligibility for citizenship.” A note to that statute states that “the court should not question defendants about their citizenship or immigration status” to clarify that the statute “was not intended to put any burden on the judiciary to ascertain a defendant’s immigration status and that the advice of rights provision was added to aid the defendant in making a decision as to whether to plead guilty.” The Committee concluded:

It is public knowledge that there are millions of illegal aliens in the United States and that the issues arising from that fact are controversial, high-profile, and are perceived by members of the public as involving national origin, race, and socioeconomic status. Based on the above considerations, we conclude that reasonable minds could perceive an appearance of impropriety based on a judge’s inquiry as to immigration status, at sentencing or at a bail hearing.