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Probation for Illegal Immigrants?

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November 18, 2008, 07:50
Probation for Illegal Immigrants?
The second part of a Houston Chronicle article shows what happens when illegal aliens get probation: they leave the country and avoid any consequences for their criminal conduct. Details.

So, do you think a prosecutor should refuse to recommend probation if a defendant is likely to be deported following sentencing? Does your office have such a policy? Does that policy violate any equal protection rights that might exist?

Realizing that this topic is likely to excite, let's please try to keep the discussion focused on the legal issues and leave the politics of immigration policy to other talking heads.
November 18, 2008, 09:08
<Bob Cole>
So, do you think a prosecutor should refuse to recommend probation if a defendant is likely to be deported following sentencing?

Doesn't that assume the Feds will do the right thing? That is sort of like trusting the parole board to do the right thing, isn't it?
November 18, 2008, 09:36
Sometimes the feds deport and sometimes they don't. There is inconsistency in their application of the law, as the series of articles linked above points out. But, knowing that, should a state prosecutor err on the side of protecting the community or releasing the defendant back into the community to face possible deportation?
November 18, 2008, 09:50
Judge Larry Gist
I pulled a probationer out of SAFPF because the Feds were going to deport him. They then entered a deportation order but released him back into our community where he was just arrested for a new drug offense. It's frustrating to rely on a system that seldom works.
November 18, 2008, 10:05
Why give him probation in the first place? That spot at SAFPF could have gone to a probationer who could stay in the US and follow the law. If a probationer is subject to being removed from the country because of a violation of federal immigration laws, why give that defendant the benefit of a sentence that can't be carried out?

The decision to deny the benefit of probation is not based on any fact regarding nationality, religion or race. It is based on the impracticality of providing supervision and treatment to a defendant who is about the be physically removed from the country where such services are available.
November 18, 2008, 14:35
Obviously you can't compare my small west Texas county with Harris County or the other larger counties in the state, but every illegal alien we have taken into custody has been returned to their country of origin once they get out of jail, either after receiving county jail time, serving their prison sentence, or even when posting a bond before going to court.

One thing I consider before offering any defendant probation (assuming it is not mandatory) is whether or not they have a realistic chance at completing probation. I would think being deported from the country might be an obstacle to successfully completing probation. That would certainly weigh on my mind before making such an offer, and I know that is a factor the defendants themselves consider.

Another question I would have about offering probation is that if they were not deported, wouldn't they be violating the law by being here, thus violating their probation as well??
November 18, 2008, 14:44
Larry L
Consider two common conditions of community supervision: (1) the Defendant shall not violate the laws of this state, any other state or the United States, and (2) the Defendant shall remain in X county and shall not leave X county without the permission of the court or supervision officer.

SO, if remaining in the United States is illegal, then the defendant is required to leave, however leaving without permission is also a violation of a term or condition. Basically, you have set up an impossibility that the defendant can comply with the terms of supervision (unless he is given permission to "leave" to permanently return to his country, in which case any actual supervision is unlikely).

The basis for failing to consider community supervision in these cases is the impossibility of compliance, not nationality.
November 18, 2008, 20:09
e sainz
I did not think that they took illegal aliens at SAFP. As for probation, illegal alien status is a factor we take into consideration, but nothing is automatic. It depends on the severity of the offense, whether the offense is likely to result in deportation, and whether we think they would be able to comply with probation. Being in a rural county, not on the bortder, people don't automatically get deported for all offenses. They usually do get deported for 3g offenses
November 19, 2008, 08:15
Gov. Rick Perry and members of the state's congressional delegation called on the federal government Tuesday to take steps to help state and local officials ensure that illegal immigrants who commit crimes in Texas remain in custody until they are deported.
In a strongly worded letter to Homeland Security chief Michael Chertoff, Perry said he was outraged to learn that many convicted illegal immigrants in Texas jails were released after they completed their jail sentences instead of being deported.

November 19, 2008, 13:18
Judge Larry Gist
Nobody knew the defendant was an illegal alien when he got probation and was sent to SAFPF. I agree with JB that we should not waste resources on illegal aliens but that assumes they will be deported. When they are not, then it's in the interest of public safety if they get probation to at least get them as much treatment and supervision as possible.
April 02, 2009, 06:16
A Harris County District Attorney's office proposal to bar illegal immigrants from receiving plea deals sparked questions Wednesday - including some from longtime prosecutors in the same office - about the legality and practicality of such a policy.

Four senior assistant district attorneys, speaking anony mously to protect their jobs, said Jim Leitner, District Attorney Pat Lykos' first assistant, discussed the plan with about 50 prosecutors during a meeting last Friday. Under the plan, defendants in the country illegally will not be eligible for probation or deferred adjudication, including mandatory probations under state law. If the accused lies he or she could be prosecuted for perjury.
April 02, 2009, 08:18
I tend to agree with not giving probation. As jsdeel said, their very continued presence is a violation of the law. Then there's the nightmare of revoking probation when they abscond (assuming you ever see them again). They claim they were deported and did not 'willfully' violate their terms. It's hard to argue with that, and hard to revoke them for being illegal when you required them to stay here to begin with.
April 02, 2009, 12:07
How are you supposed to know if someone is an illegal alien if they don't tell you?

Like Phil Collins once said, it's no fun, being an illegal alien.
April 02, 2009, 12:24
Originally posted by e hernandez:
I did not think that they took illegal aliens at SAFP. As for probation, illegal alien status is a factor we take into consideration, but nothing is automatic.

How would you know, in all cases, whether someone was an illegal alien? In my life as a native Texan, I have known many illegal aliens who had an excellent command of the english language and whom you would never suspect are here illegally.

For example, many years ago as an off-duty police officer, I worked an extra job for a restaurant owner (a very fancy restaurant, no less) and the owner turned out to be illegal. He had been brought into the country as an infant. He later did get his citizenship, but I recall how surprised I was when he told me he was going through the process to become a citizen.

Isn't it actually called SAFPF (Substance Abuse Felony Punishment Facility), and not SAFP, although it is pronounced as SAFE-PEE?
April 03, 2009, 21:01
Yes, the second "F" is silent. Greg, you're right, that some illegal aliens are hard to ferret out. Especially if they're from Canada or some other non-stereotypical country.
April 06, 2009, 09:35
e sainz
Greg, obviously I am talking about the ones we know about. And as far as SAFPF, that is my understanding of their policy. You are right, you can't tell just by looking at someone what their status is.