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.