If a defendant will be deported, why offer probation?
Just because there may be collateral consequences that a US citizen would not face doesn't change my offer. If anything, I would not offer a probation that a regular defendant might get. I know that the defendant is very likely to disappear into the woodwork knowing that he will be deported. The only solution then is to offer some type of time.
I once had a Nigerian defendant who wanted to postpone proceedings so that he could finish his degree at U of H before being convicted of credit card abuse. I called the INS myself.
Having prosecuted in El Paso, where that subject came up a lot, I always believed that justice prevails when everyone is treated equal under the law. We don't have two classes of citizens, those who can stay and withstand the appropriate punishment, and those who would have to leave if they took the appropriate punishment.
We certainly can't go to another country and commit felonies and expect to get away with it. Just ask the "Jackass". Recommendations should be made that reflect the seriousness of the case, not the status of citizenship.
The deportable defendant is different from the undeportable defendant.
First, the deportable defendant has committed a crime while in this country either illegally or under circumstances that put him on notice that misbehavior can result in deportation.
Second, the deportable defendant is not likely to be present to meet the conditions of a probation. He/she simply won't physically be here if given the same punishment that is appropriate for a undeportable defendant. That is a fact. There is nothing unfairly discriminatory about recognizing that fact.
Third, it is unfair to alter the punishment to keep the defendant from being deported. Congress wrote the laws regarding deportation. Congress, through elected representatives and under our Constitution, gets to have the final word on how immigration/deporation is handled.
Fourth, prosecutors are not members of Congress. By manipulating a punishment to circumvent the laws of Congress, prosecutors actually do something quite anti-democratic. It also leads to wide disparate outcomes and potentially unfair results.
Fifth, by manipulating the results, prosecutors won't necessarily be keeping deportable aliens from being deported. Previously, we handed out deferred adjudication as the way to avoid deportation. Congress then redefined a conviction to include deferred adjudication. All in all, Congress has the final say.
Finally, a person's citizenship status is not a protected classification. The person's punishment is not being altered because of a religion, particular nationality, or race. It is being altered because of geography. The person is not likely to remain within the borders of Texas upon being punished. If you don't like that outcome, you should talk to your Congressman.
We recently prosecuted a case in which the defense made deportation an issue during plea negotiations. Given the offense (indecency with a child) I hope he does get deported and never is allowed legal status. This is exactly what Congress had in mind when writing the law. The only thing that I feel sorry about is that the people in his home country won't have him on a public database.
I would never offer probation to a defendant who will be deported...that is the equivalent of NO PUNISHMENT. Usually the lawyers are fishing around for some kind of misdemeanor. My response has been that if the defendant wanted misdemeanor punishment, he should have committed a misdemeanor. While I would NEVER "up" my offer due to the defendant's status, why would I give someone a break I would not give a citizen?
[This message was edited by BLeonard on 06-09-03 at .]
If the defendant is in the country illegally, meaning he has no papers, then I don't see why that can't be a factor to consider in increasing a punishment. Misconduct is misconduct, and how many of us would think we wouldn't be punished for sneaking in another country illegally?
A defense lawyer who knows a lot about DWI just informed me that a felony DWI is not a deportable offense...Huh? Can anyone confirm?
Felony DWI used to be an "aggravated felony" which made it a deportable offense. But I think that either recent case law or recent legislation (I think the latter) changed that. I don't know for sure, I just remember hearing some buzz about it changing.
This morning on the jail run/plea docket three defendants presented to accept their probation offers; of course none were citizens. The lawyers complained when the judge refused the pleas..."c'mon make it a misdemeanor with jail time." The defendants were from Jamaica, Mexico and Tonga. If I had committed their crimes in their countries, I suspect I would be UNDER the jail. I refused and went straight back to my office and ordered a stamp with the following: "PROBATION OFFERS ARE VOID FOR NON-CITIZENS." Hereafter, every D#@n file will bear that legend.
What I love are the defense attorneys who tell me, a conviction will definitely result in deportation. Then I look their client up on our computer & see he/she has been busted & convicted a couple of times in my county. I then ask, "Why wasn't he/she deported for these priors?" That usually ends the use of the deportation card.
Interestingly, we recently had a guy, who had been given deferred adjudication for some relatively inoffensive felony way back in the 1980's - 2 administrations ago and he lived it out. He is a British citizen, who has lived here about 30 years. His lawyer told me, due to the Homeland Security issues, his clients was going to be deported for this old adjudication unless we signed some document purporting that the case had no merit. My boss refused. I don't know what happened to the British guy.
If you do have a crook who actually will be deported if he's convicted, and the crook doesn't want to go back home to the 3rd world, you might suggest he enlist in the French Foreign Legion. One of the bennies of serving in the Legion is that after a certain number of years of service, you become a citizen of France.
Not as good as being an American, of course, but it's still the First World. And by suggesting this alternative, you show that "you care."
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