Giving the benefit of art. 42.12 sec. 3 to someone who was subject to deportation or likely to be deported during the period of supervision has always been problematic, but does not Vidal make that decision even more difficult? Since these people do not report to anyone when they illegally re-enter, how will the State ever meet the burden imposed by the Court?

I have always viewed the requirements that:
you must:

(1)commit no offense against the laws of
this state or any other state or of the
United States
(2)work faithfully at suitable employement and (3)support your dependents

to be very problematic in granting an illegal probation. In fact, I very rarely offered an illegal probation because of this. It was not a problem because the county where I prosecuted was very pro prosecution and very pro law enforcement.

On other subject, the prosecutors with great jury panels out there....be VERY thankful that you have such jury panels.

I don't offer probation to illegals and my judge would not accept it if I did. i even stamp every file to the effect that probation offers to illegals are void.

So, do you find the aliens more willing to accept plea bargains involving incarceration than other folks, or do you incur the expense (and uncertainty) of trials much more frequently? Then, there is the issue of filling our prison system with illegals (who may be less deserving of such treatment than many who get probated sentences).

Boy, for a minute there, I thought you guys were talking about REAL aliens, like at Roswell, Area 51, etc.!

When I worked prosecuting at the border, El Paso, the problems of Aliens were recurrent. They could not make a plea to a case an American would or they would be deported, they could not comply with probation, etc...

I always found the situation difficult. I found that in many cases, the punishment for an illegal did not fit the crime. I don't want to sound as if I encourage criminal behavior, but frankly departation in many instances seemed unwarranted, but likely.

I always thought, though, that we did not have two standards in Texas, one for Aliens and one for Citizens. If I go to Mexico or Singapore and break the rules, I must suffer the consequences. I keep that in mind trying to defend Aliens.

I'm pretty sure that if you, as a visiting American (either legally or illegally present), violate the law in either Mexico or Singapore that you will punished much more harshly there than a similarly situated alien in our country would be.

Just where exactly in the Constitution does it say that any foreign national has the right to illegally enter the US and break our laws?

I can't remember going to trial on a case with a deportable defendant from this hemisphere that would not have been a trial anyway due to the gravity of the crime. It seems that latin american non-citizens are more amenable to pen time than similarly situated citizens; i.e., two years pen rather than ten pro. Now, as to other non-citizens, we have had to try them where otherwise they would have gotten probation offers. In particular we have had to try folks from war-torn or otherwise unpleasant places such as Viet Nam, Cambodia, Bosnia and the Sudan.

I had a judge tell me one time that he would not approve probation for any illegal alien because by ordering them to "remain in a specified place" (i.e. that county and the U.S.) he would be ordering them to violate federal law and therefore probation as well by continuing to reside here illegally. Does anyone think that argument or rationale holds water?

I like that argument. Makes sense to me.

Presumably these same arguments are available upon trial as a basis to say the Defendant is not a suitable candidate for community supervision? You offer expert testimony that the defendant cannot be expected to comply with a mandatory condition of supervision?

Ben, your reply seems to imply that we should routinely recommend a lesser sentence in these cases in order to offset the difficulty of securing a guilty plea/waiver of jury trial (since probation is not even on the table).

Everyone think that the court got it right in Vidal as far as the burden of proof?

If I have a Illegal alien charged with a crime, I usually offer them pretty much the same as I would a citizen. Particularly in cases like DWI, why give a jail sentence and let him out with no supervision, counseling, etc just to re-offend. Some may recommend trying to deport him on release. If You can get that done, he will usually beat the bus back. Until the Feds get serious about sealing our borders and continue, as policy, to allow people into this country illegally, I'm treating them the same as those that are here legally. I would rather take an illegal alien who is going to live here, no matter what I do, and try and help him beat any problems he has so he won�t hurt someone later. I have the discretion to determine what probation violations I will prosecute. I won't treat violations of federal immigration law as a probation violation anymore than I would a speeding ticket. That is, until the Feds stop treating illegal immigration like a traffic ticket, neither will I.

So what do you think would have been the result in the Vidal case if the State hadn't added the extra/amended condition of "reporting if released from INS custody and in the US" and just kept the plain ole report to your probation officer monthly requirement?

We recently had a fellow that had been given probation, back when I didn't know better and then reoffended and got deported. He then re-entered and was caught and deported again, then did it again and got caught and sent to the Fed Pen for a year or so and then we brought him back here. When he came for his actual hearing, the judge kept him on probation ! Then the feds didn't put a hold on him and he got out. Next he came before a different judge on his pending felony (all of these were DWI's by the way) and that judge gave him probation again! Since then we have had another illegal go before the judge and despite all the evidence, he too got probation on an open plea to the court.

We have learned by experience that they obviously can't make probation and don't ever offer it, but the judge doesn't seem to worry about the legality, etc. It is frustrating to say the least. I am on one hand a little bothered by the thought of giving jail time to one person and probation to another, but, once again, they are illegal to start out with and not because of anything I did. Hey, what happens with an alien, legal or otherwise, who has no prior felony and gets a magic less than one gram possession charge? Still automatic probation?

I don't know that two years in the pen followed by deportation is a lesser sentence than ten years probated. Two minutes in the pen is too long for me. You are right though, Martin, I have on occasion offered an illegal a low jail/pen sentence just to move the case if it was a relatively de minimus charge. I am especially likely to do it if they will be deported from the Americas.

Do you all have a good rapport with your local INS (ICE?) agents? Deportion happens but they have to know where to pick up the offender.