Monday, April 5, 2010

A rock and a hard place

Here's a situation I find myself in once a week at least, and to the best of my knowledge it's a situation without an obvious solution. Here's a typical example:

A defendant is charged with felony DWI, his third. He is here illegally from Mexico. Normally, on a third DWI I'd offer probation but INS has a detainer on him: as soon as we conclude his case he'll likely be deported. Unless he's convicted of a misdemeanor, in which case he might be able to stay.

This effectively takes probation out of the equation as it's simply not possible for someone to successfully complete probation if they are deported: they can't report, they can't be tested for illegal substances, they can't do community service, and they are not likely to pay their probation fees. A non-starter.

This means that my options are:
1. Recommend prison time (penitentiary, not just county jail), a minimum of two years; or
2. Reduce the charge to a misdemeanor.

I am often asked to do the latter by defense attorneys, who argue that their client has been working hard, and will be punished doubly if convicted of a felony: prison when most people get probation, and separation from their family when deported.

They are right, that is harsh. But my response usually comes in the form of a question: Should someone really get a break because they are here illegally? I wouldn't normally reduce a felony to a misdemeanor, and doing so because someone has entered the country illegally seems unfair.

This is a pickle for all involved, for prosecutors, defense lawyers, and of course for the defendants themselves. I offer no solutions, though I'm open to hearing them. All I can hope is that those who represent the undocumented bone up on the law and make sure their clients know what they are facing. Kudos, then, to attorney Jamison Koehler for addressing this topic in his defense-oriented blog, here.

Education seems to be his best bet, but until he or I come up with the definitive solution to the issue, I for one am accepting suggestions.


  1. I'd recommend probation and let them get deported. I don't really have a bug up my butt about illegal immigration, but the least that an undocumented immigrant can and ought to do is to obey the law. On the other hand, I DO have a bug up my butt about drinking and my opinion, illegal immigrants are the ONLY people to whom you should be offering probation for a third DWI.

  2. And when he finally kills somebody?

    At least if he goes back home, his family will be able to talk to him on the phone. Or even rejoin him. The families of the dead have no such options. I'm beginning to feel like a second-class citizen in my own country.

  3. Why not probation with transfer? I do not know much about the historical practice of using the U.S.-Mexico treaty on Prisoner Transfer (T.I.A.S. No. 8718, 28 U.S.T. 7399), but the option exists on paper.

    I don't know if illegals are considered domiciliary of the U.S. (II.3 & IX.9--five years+intent of permanent, arguably impossible for illegals). But it applies to probation and supervision (IX.3) and requires regularly reports (V.5 every six months) on the status of the sentence. Cost issues should also be minimal (V.4: Receiving State shall not be entitled to any reimbursement) if not outright cheaper.

    Alternatively, could the probation terms be crafted so as to run only when the subject of the probation is in Texas? This means that should they return to Texas, one hopes legally, they would then be required to serve the terms of their probation terms.

  4. I would never reduce such a case to a misdemeanor. Why reward someone by giving them a better offer then you would give a legal resident. To offer probation knowing they will be deported means they get no punishment at all. Offer pen time.

  5. If option 2 (i.e., reduce the charge to a misdemeanor for a third DWI) exists for illegal immigrants then the same option must certainly exist also for dealing with citizens and legal immigrants. Thus, there is an obvious solution for being both compassionate and fair, at least among all cases handled by a particular ADA, and that is to exercise option 2 in every third DWI case regardless of the defendant’s citizenship or immigration status.

  6. It's late and I'm tired so I'll address the last point by anonymous:

    No. To do this is to basically ignore the law. To have a policy, so to speak, of reducing every DWI 3rd to a misdemeanor is to effectively eviscerate the legislature's decision that you get two misdemeanors and then a felony. I don't think that highly of myself.

    It doesn't solve the problem, either. What happens if the dude does it again? The problem still exists. Perhaps, because it's his fourth, I'd feel happier about straight pen time but I'm not sure I'm willing to take chances with people's lives that way. Plus, to quote the other anonymous: "Why reward someone by giving them a better offer then you would give a legal resident."

  7. It's a very interesting dilemma. Judges and prosecutors often get mad at defense attorneys whose clients turn down a fair offer and insist on taking a lousy case to trial. Why couldn't you talk some sense into your client? My response: Hey, there is no one who hates a lousy case more than the defense lawyer who has to put it on.

    And that's the problem with clients facing deportation or a violation of probation in case of a conviction. The collateral consequences of the conviction can be far more serious than the penalty on the particular offense. Your client thus has no choice but to take his or her chances at trial, no matter how fair the offer is. In other words, it is a lousy situation all around.

  8. I usually give at least a 1 year prison sentence to be suspended upon deportation. I don't know the Federal code section, but if one is sentenced to at least 1 year for a felony, re-entry to the US becomes punishable by up to 10 years. Given, I wonder if the feds ever use it but at least you're setting the stage.

  9. I have experienced this problem first hand as both a prosecutor and defense attorney.

    When I was a prosecutor, I criticized a junior prosecutor when she argued against probation for a non-citizen because "everyday he is here (illegally) he is committing a crime." The Code does not prohibit non-citizens from getting probation if they are otherwise eligible. As a prosecutor I felt it was my job to treat everyone equally based on the facts of their offense and criminal history. Whether you offer pen time or probation make sure it is for what he did, both past and present, and not based on his status.

    As far as your question, the answer is straight forward: treat him like you would anyone else. His status, family issues, etc. are not your concern.


  10. He has already been convicted twice.... the behaviour was not modified by the first two trips through the system (of which he probably got probation).

    One Anonymous advised: "treat him like you would anyone else. His status, family issues, etc. are not your concern." I could not disagree further from this point of view. How can the District Attorney overlook Immigration status? It makes me sick how easily Federal Statute is ignored. The same illegal immigrants who commit crimes in Travis County will not hesitate to run back across the border to hide from Texas authorities (i.e. homicide suspects in Austin from 2008 and 2009 slayings). Quite possibly the only reason your defendent hasn't run is because he is in County Jail on the ICE Detainer.

    Bottom line: Two years State Jail and then deportation or Conviction and deportation (with deferred sentence if he returns).

    This situation would not be an issue in Williamson County.

  11. Doesn't the policy of going with prison for everyone who is an undocumented alien, but probation for anyone who is documented, naturalized, or otherwise a citizen create an equal protection problem under the United States Constitution?

  12. Rick: I don't know. If probation is only offered to those who can realistically complete it, for whatever reason, the fact that a group of people always falls into that larger category shouldn't create an EP problem, should it?

  13. Mark: My most recent post -- I didn't want to insert the link here without your permission -- considers that question.

    In essence, I note that because you are a state (and not federal) prosecutor, I think there's possibly a due process issue under the 14th Amendment that is related to equal protection concerns.

  14. It's an interesting dilemma. Count me among the votes for sticking with the usual prison time, for all the reasons discussed above. But for a D.A.-novelist, this is a great set-up for a novel, no? Illegal immigrants routinely face disproportionate penalties for relatively insignificant offenses because of the possibility of deportation. So a good kid can find himself jammed up and required to cooperate, to "earn" the reward of having the charge dropped. So you have the ordinary man thrown into an extraordinary situation -- the setup for all those great Hitchcock movies. Just a thought.

  15. Prosecute them for whatever they did - felony, in this case. They shouldn't be here anyways, maybe they should have considered that before doing something that was illegal and likely would get them picked up by the police.

    The law should apply equally to all, that's why Lady Justice is wearing a blindfold. The fact that they will be separated from their families and whatever other problems will arise are unrelated to the crime they committed.


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