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Punishing Indocumentados

Anyone who looks will notice that my “blog roll,” containing links to the blogs of other attorneys (and some non-attorneys) shows a dearth of prosecutor blogs. It’s not exactly that I’m not a fan of prosecutors, although I won’t deny there’s some prejudice involved. My own experiences with — and stories I hear from local attorneys concerning — prosecutors causes a knee jerk reaction in me that automatically makes me suspect them.

But I’m not a fan of knee jerk reactions: I work through it. There are prosecutors — admittedly few in number — with whom I’ve had direct contact whom I’ve found to be quite honorable and whom I’d love to count among my short list of close friends, if the opportunity to do so ever arose.

One I have never had direct contact with is prosecutor Mark Pryor of D.A. Confidential. Yet, like criminal defense attorney Jamison Koehler, I am (mostly!) reassured by what I read on Mark’s blog.

There’s been a lot written lately regarding the recent United States Supreme Court ruling in Padilla v. Kentucky. The case concerns the intersection of criminal defense and immigration law. This is an area where, as all the attorneys who discuss it note (see Koehler’s post not only for what he has to say, but for a good list of others writing on the issue), criminal defense attorneys have not had a stellar record of performance.

The population of undocumented persons living in the United States (i.e., non-citizens who have not gone through the normal channels to get here, or who have overstayed their welcome, so to speak) is approximately 10 or 11 million as of 2006. Fresno, California, where I have my criminal defense law office, has a very high number of people whose country of origin is Mexico, some of whom are indocumentado (undocumented), so I learned early on to make inquiries. I even took the step of purchasing Immigration Law and Crimes, which is not only an incredibly dense read, but makes a great sledgehammer — which is probably why it was so expensive. While I am nowhere near an expert on immigration law (and don’t, even for a heartbeat, wish to claim otherwise), I have done some reading in the area. But there is a lot to learn.

“Well, what’s that got to do with Mark Pryor?,” you’re asking.

The answer is that Mark, too, has written about the intersect between immigration law and criminal defense, or, more accurately in his case, criminal prosecutions. Like Jamison, one of the things I like about Mark is that he actually thinks about things like this; he does not take them lightly; they weigh upon him and he weighs them.

But in this instance, I see a problem with his approach.

As Mark puts it, once a week he encounters the following dilemma:

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.

To cut to the chase, the end result is that — well, I’m not totally clear. Mark doesn’t say what he actually does in these cases, although he implies that he does not offer them probation, as he would if they were citizens (or were perhaps in some other way not subject to deportation), because they won’t be able to comply with the terms of probation, since they’ll be deported, and he further implies that he will not offer them a misdemeanor (which would allow them to avoid deportation).

Naturally, defense attorneys complain that this is a double punishment, since following their prison sentence, they will be deported anyway. Mark notes,

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.

I disagree that it seems unfair.

The way I understand things, anyone who has been in the United States illegally will not be allowed to return following deportation — at least for a minimum of 10 years — anyway. Mark already noted that because he doesn’t offer probation, these folks are punished more harshly than the norm for those he prosecutes by getting a prison term followed by deportation. He won’t give probation because they can’t comply with the terms if they’re deported. Presumably, then, the reason for not offering probation is because they will automatically, if they are deported (which they almost certainly will be) be in violation of the terms of probation. (He forgot to add one consequence, by the way, but maybe it doesn’t exist in his state: In California, you can’t leave the state without permission if you’re on probation. So far as I know, there’s no exception just because one was removed from the state against one’s will.)

I’m not sure, but I think the idea in Mark’s mind — I didn’t ask — is that he doesn’t want to set them up for failure, so he gives them a prison term instead of the probation offer.

My thinking is that they should still get probation. So they can’t comply; so they’re going to be in violation. Who cares? If they were to try to return to the state, they’d be breaking the law anyway, so being in violation of probation hardly seems problematic.

On the other hand, if they are placed on probation and then deported, they can — like those citizens to whom he does offer probation — try to get on with their lives. Plus, as one commenter to Mark’s post noted, it may be possible to work out a way for them to comply with probation even though they are facing deportation. But if it’s not, then, again, they can at least get on with their lives and, if they decide to follow the law, they aren’t returning to the state any time soon anyway — and will be subject to arrest by federal officials for doing so if they did.

Furthermore, if the only reason Mark doesn’t offer probation is that they are indocumentados, then I think this might violate Equal Protection, or possibly the 14th Amendment, under the United States Constitution. I stress MIGHT because while I sometimes read constitutional law while sitting in front of my TV, I am not a constitutional scholar and I don’t really know.

If Congress passed a law, I believe they could fix this, since under the Constitution, this is something the feds control. Since Mark is a stateprosecutor, he is arguably violating the due process rights of these individuals under the 14th Amendment through the differential treatment accorded under his “policy.” (See Roger C. Hartley, “Congressional Devolution of Immigration Policymaking: A Separation of Powers Critique”(2007) 2 Duke Journal of Constitutional Law & Public Policy 93.)

Alas, Mark and I are in different jurisdictions. I’ll not get the chance for us to test this theory.

On another note, if anyone knows of other reasonable and interesting blogging prosecutors (and law enforcement officers), please feel free to send me links. I’ll check them out and maybe add them to my blogroll.

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