Probation plan for Illegal Immigrants prompts tricky legal questions
Posted on Sunday, April 05 @ 11:40:51 EDT
Topic: illegal immigration alien riots crimes
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 Probation plan for Illegal Immigrants prompts tricky legal questions
Harris DA’s idea hinges on whether illegal immigrants can legally serve terms
By SUSAN CARROLL
April 4, 2009, 9:44PM
The legal argument behind a controversial proposal by the Harris County District Attorney’s Office to eliminate probation plea deals for illegal immigrants hinges on a simple but hotly contested question.
Can people who are in the country illegally, by letter of the law, comply with the terms of their probation?
That question was raised by District Attorney Pat Lykos on the campaign trail before she took office in January and has generated a heated debate among judges, defense attorneys and legal scholars.
Lykos, a former judge, said defendants who are in the country illegally cannot fulfill probation requirements for two reasons: first, she said, because they are unlawfully in the United States; and secondly, she said, because they cannot legally work or seek out employment — a requirement of community supervision.
TOPICS: Illegal immigration, Illegal immigratns, DA, prosecture, crimes, probation, emplyment, legal argument, Harris County District Attorney’s Office,District Attorney Pat Lykos, immigration laws, felony charges, serious crimes, including aggravated assault, sexual abuse of a child. Immigration and Customs Enforcement, ICE, undocumented immigrant is
Detractors, however, disagree with that interpretation of the law, and some predicted increased jail crowding and lawsuits if the proposal becomes policy.
Mark Bennett, president of the Harris County Criminal Lawyers Association, said Lykos raised an interesting legal argument, he but added that “practically speaking, I think it’s going to be a disaster, and we’re going to find there’s a reason that Harris County DA’s Office isn’t in the business of enforcing our immigration laws.”
Talk of changing the policy prompted protests last week from some within the District Attorney’s Office, even among longtime prosecutors. Lykos released a brief statement last week through a spokeswoman, saying only that the policy was under review, and she would make no comment until the analysis was complete. The office, however, clarified on Friday that the proposal would not take plea deals off the table for illegal immigrants in cases where the law requires a sentence of probation.
Hundreds on probation
While campaigning last year, Lykos said she was concerned that illegal immigrants were slipping through the local criminal justice system and ending up on probation without proper vetting by immigration officials.
A Houston Chronicle investigation published last fall found hundreds of illegal immigrants were sentenced to some form of probation, despite admitting to the Harris County jailers upon their arrest that they were in the country illegally.
The investigation found 330 cases involving defendants sentenced to probation or deferred adjudication — slightly more than half for felony charges. In a handful of cases, illegal immigrants under the county’s supervision later were accused of committing serious crimes, including aggravated assault and sexual abuse of a child.
Immigration and Customs Enforcement agents identified and charged more than 5,900 illegal immigrants in prisons and jails in Southeast Texas with immigration violations from October through the end of February, compared with roughly 13,360 in all of last fiscal year, said Gregory Palmore, an ICE spokesman.
In late March, ICE officials requested and received a full list of a probationers who told their probation officers that they were foreign-born, said Ray Garcia, deputy director of operations for Harris County Community Supervision and Corrections Department.
Garcia said he does not know how many of the county’s 38,703 probationers are in the country illegally, and does not track how many have been referred to ICE officials. Roughly 5,755 told probation officials they are foreign-born as of late March, he said, but many may be naturalized citizens or legal residents whose crimes do not rise to the level of triggering deportation.
Legal arguments
Supporters say the Harris County proposal, which would require defendants to attest to their citizenship under oath, is legally sound and long overdue.
“I love it,” said Harris County District Judge Jim Wallace, a former prosecutor and police officer with 15 years on the bench.
Wallace said a policy change that eliminates probation for illegal immigrants is necessary to hold defendants facing deportation accountable for their crimes. He also supported Lykos’ legal argument.
“I think it is totally within the rights of the judge and/or the DA’s Office not to offer probation to people who cannot substantiate that they’re in the country legally,” Wallace said.
The bottom line, Wallace said, is this: “I don’t know how you can be on probation with the understanding that you are not to violate the laws of this state or of any state or of the United States, and by just being illegally in the country, you’re automatically in violation of your probation.”
But Robert McWhirter, an attorney and author of the book The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers, disagreed, saying the argument is flawed. While sneaking across the borders into the U.S. can be charged as a criminal offense, actually being in the country illegally — known as “unlawful presence” — is not, McWhirter said.
“Being in the country illegally is not a crime,” he said. “It’s a civil offense.”
Bennett said Lykos’ argument breaks down at the point of employment.
“The undocumented immigrant is not breaking the law by working,” he said. “The employer is breaking the law by hiring him.”
Undocumented workers, however, break the law in some cases — when they present fraudulent work documents such as a Social Security card, for example.
The finer points of the proposal may become an issue if the policy is implemented, opponents said, predicting challenges on the basis of constitutionality.
“The Constitution says, ‘We the people,’ not ‘We the citizens,’ ” McWhirter said.
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