Thread: Probation, instead of deportation

Probation, instead of deportation
Though eligible to be put out of the country, some illegal immigrant criminals avoid prison
By SUSAN CARROLL Copyright 2008 Houston Chronicle
Nov. 18, 2008, 9:14AM

Mayra Beltran Chronicle
HPD Sgt. Joslyn Johnson's husband, Rodney Johnson, also of Houston police, was shot and killed by Juan Quintero, an illegal immigrant who had earlier been sentenced to a form of probation. Johnson wants to see the probation policy for illegal immigrants changed.

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About this series
This three-day Houston Chronicle investigation examines how scores of illegal immigrants cycle through local jails and fall through the cracks of immigration enforcement.

Day 1: Revolving door
Illegal immigrants, including convicted child molesters, drug dealers and suspected murderers, avoid deportation after being arrested in Harris County.

Thousands in U.S. illegally released in Houston In killing blamed on immigrant, woman's kin want answers Photo gallery: Immigrant criminals fall through cracks Possible solutions for immigrant inmate screenings Getting Booked: A look at Harris County’s intake process Sending them back The Timoteo Rios case Suspected illegal immigrants in jails
Day 2: Bail problem
Dozens of suspected criminals who told jailers they were in the country illegally are freed on bail, later abscond and are accused of more crimes, or even vanish.

An abuse of freedom Cornyn wants investigation into immigrant inmates Possible solutions for bail dilemma Photo gallery: Family search for justice Day 3: Second chances
Many suspected illegal immigrants convicted of crimes from prostitution to sexual abuse avoid prison time by being sentenced to probation.

Some Houston illegal immigrants get probation for crimes Pedro Edgardo Alvarez: Avoiding deportation Graphic: Illegal immigrants on probation Possible solutions for probation problem Lisa Falkenberg: Chronicle series draws hatred Case studies
Some Harris County Jail inmates who said they were in the country illegally were ordered deported decades ago, but never left. The worst escalated to commit more serious crimes. Their court files hold stories of squandered second chances. See where they are now Bayron Orlando Euceda, an illegal immigrant from Honduras, did not serve a day in prison for sexually assaulting a 13-year-old Houston girl.

Instead, a Harris County judge sentenced the 21-year-old to eight years deferred adjudication, a form of probation. A sticky note on his plea agreement reads, "Best interest of victim."

"That's incredible," said Andy Kahan, director of the Houston Mayor's Crime Victims Office and a former probation officer, after thumbing through Euceda's court paperwork. ''The best interest of the victim would have been to have that guy locked up."

A Houston Chronicle investigation found 330 cases involving defendants sentenced to some form of probation in Harris County — despite admitting to the jailer upon their arrest that they were in the country illegally.At least 44 of those cases involved defendants who later had their probation revoked and were sent to prison or who now have outstanding arrest warrants, the investigation found.

Slightly more than half of the 330 cases involved 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.

The review was based on arrest, immigration and court records for more than 3,500 inmates who said they were in the country illegally when they were booked into jail over a span of eight months, starting in June 2007, the earliest immigration documents available.

The Chronicle's investigation found:

•A shortage of Immigration and Customs Enforcement agents assigned to screening inmates at the county's jails, which has allowed illegal immigrants eligible for deportation to end up on probation. ICE agents filed paperwork to detain only one in four inmates who admitted they were undocumented during the Chronicle's review period.
•The Harris County District Attorney's Office lacks an official policy on offering probation to illegal immigrants.
•Prosecutors and pretrial service officers frequently lack access to accurate information about defendants' immigration status when preparing reports for judges. As a result, some judges say they often know little about the immigration status of defendants before sentencing.
•Once illegal immigrants are sentenced to probation, there is no streamlined process to cull them from supervision rolls. Harris County probation officers try to help ICE agents whenever possiblebut lack the means and manpower to verify probationers' immigration status, said Ray Garcia, deputy director of operations for Harris County Community Supervision and Corrections Department.

Robert Rutt, special agent in charge of the ICE criminal investigation office in Houston, said ICE officials "triage and tend to go after the worst of the worst" of immigrants who are sentenced to probation and released from jail but who are eligible for deportation. ICE has improved screening in Harris County's jails in recent months and has stepped up efforts to catch immigrants who have not complied with an order from an immigration judge to leave the country.

For example, in the 2008 fiscal year, Houston's fugitive teams made 1,587 arrests, up 28 percent from 2007, ICE officials said. Nationally, ICE fugitive teams made nearly 34,000 arrests — more than double the number two years ago.


Case draws criticism
The practice of sentencing illegal immigrants to probation attracted sharp criticism after an illegal immigrant from Mexico killed Houston police officer Rodney Johnson.

Juan Quintero, who is serving a life sentence for the murder, had several DWI convictions and was sentenced to deferred adjudication for indecency with a 12-year-old girl in 1999. Quintero was deported but returned to Houston illegally and shot Johnson on Sept. 21, 2006.

Johnson's widow, Houston police Sgt. Joslyn Johnson, said she hopes for a policy change that would stop illegal immigrants from ending up on probation, saying prison time would be more of a deterrent to coming back to the U.S. illegally.

"They broke the law when they came into the country illegally, and if they've committed another crime on top of that, I think they should be automatically deported," she said. "They should not be allowed to stay in the country on probation."


Some lie about status
Euceda's case highlights the system's shortcomings in not identifying illegal immigrants early on.

Euceda told jailers when he was arrested on the sexual assault charge in July 2007 that he was in the country illegally. He filled out court paperwork saying he was from Honduras. There is no record of ICE agents filing paperwork to detain him.

In November 2007, state District Judge Jim Wallace signed off on a plea agreement that granted Euceda deferred adjudication, a form of probation that allows defendants to avoid a formal conviction if they successfully complete the terms of their supervision. The prosecutor on the case, Connie Spence, declined comment through a district attorney's spokesman.

Wallace said he did not remember the case but likely did not know Euceda was undocumented.

"My policy is not to give deferred (adjudication) or straight probation to anyone who is here illegally because I'm of the opinion that there is that much more of a reason for that person to flee the jurisdiction," he said.

Wallace said he generally asks a defendant's attorney whether the client is undocumented before signing off on a plea, but he said that is probably not a very reliable measure.

Some defendants lie about their immigration status and are sentenced to probation, "and then next thing we know, they're gone," Wallace said.

He added: "Effectively, they've committed whatever offense they've committed for free. ... It's irritated me for years."

Euceda was released from Harris County Jail after signing the plea agreement on Nov. 30, 2007, and was picked up by immigration agents five days later. He was formally deported to Honduras in April.

On Aug. 9, U.S. Border Patrol agents caught Euceda trying to sneak back into the U.S. through West Texas, court records say. He was charged with illegal re-entry after deportation. His case is pending.


Separating issues
While some judges said they were simply unaware of a defendant's immigration status, others said the status should not matter.

George Godwin, a Harris County district judge, sentenced 19-year-old Hugo Sanchez to eight years' deferred adjudication in February for having sex with an 11-year-old girl. Immigration officials filed paperwork to detain Sanchez within two days of his arrest in September 2007.

Godwin could not comment specifically on the Sanchez case, but he said he generally tries to keep immigration issues separate from the criminal cases.

"We don't do immigration work here," he said. "That's one reason why it gets sticky and it gets complicated. You just sort of have to divorce yourself here from the immigration problems."

Kelli Johnson, the prosecutor in the Sanchez case, declined comment through the District Attorney's Office spokesman. Sanchez's attorney did not return phone calls.

Asked whether probation or deferred adjudication is an appropriate punishment for someone facing deportation, Donna Hawkins, a spokeswoman for the Harris County District Attorney's Office, said, "I don't know how to answer that question.

"We would, as prosecutors, want to see that justice is done," she said. "If we knew the defendant was going to be immediately deported, in most cases we would not offer a probation they could not complete. If that happens, obviously, we would not feel justice is being done because they're not being punished, aside from possibly deportation."

Patrick McCann, a Houston defense attorney, said defendants should be eligible for probation regardless of their immigration status.

"Judges cannot as a matter of due process and equal protection say you're not eligible because you don't have documentation," McCann said. "First off, it's not a state judge's call, ever. It's not their business. It's not their jurisdiction."


Again and again
Israel Lopez, an illegal immigrant from Mexico, finished a seven-year Texas prison sentence in July 2006 for aggravated sexual assault of a child and was turned over to ICE agents, prison records say. ICE officials confirm he was deported in August 2006.

Less than a year later, in June 2007, Lopez was arrested again on suspicion of assaulting a Harris County sheriff's deputy and told jailers he was in the country illegally, records say. Lopez was sentenced to eight months in jail. There is no record of ICE filing paperwork to detain him then.

In February, Lopez was arrested again, charged with assaulting his wife. He was sentenced to probation by a visiting Harris County Criminal Court-at-law judge. A motion was filed to revoke his probation after the Chronicle asked the sitting judge, James Anderson, about Lopez's sentence. Lopez is now a fugitive, according to court records.


Breaking their word
Other illegal immigrants have slipped through the system by not divulging their legal status.

In 2001, a federal immigration judge told Teodorico Cespedes, a native of Costa Rica, to leave the U.S. but allowed him to opt for "voluntary departure," meaning Cespedes agreed to leave on his own terms, rather than be formally deported. There is no evidence that Cespedes ever returned to his home country.

In January 2007, Cespedes was arrested and charged with assault in Houston. He never told jailers or court officials that he was in the U.S. illegally, records say. A judge sentenced him to one year of community supervision, and he was released from jail after immigration officials didn't file paperwork to detain him.

Ten months later, Cespedes was charged with aggravated sexual assault of a child, accused of raping and sodomizing a 4-year-old girl. He is being held without bail, pending his January trial date.

Harris County Criminal Court-at-law Judge Reagan Helm, who sentenced Cespedes on the original assault charge and opposes putting illegal immigrants on probation, said he was not aware of Cespedes' immigration status.

Garcia, the probation official, declined to comment on any specific cases in the Chronicle review. He said his office provides ICE with a list of probationers who have told probation officers they are foreign-born whenever ICE requests it.

Rutt, the ICE official, said the agency trained nine Harris County jailers in August to help file paperwork to detain illegal immigrants. Last month, ICE also gave Harris County jailers access to an immigration database that allows them to check inmates' immigration history automatically.

Garcia said if ICE could identify illegal immigrants before they reach probation officials, it would help ease the county's caseload and the financial burden on local taxpayers.

''If we could have more of the upfront identification of people, so you knew their status prior to placing them on supervision, I think that would save our system and the state money," Garcia said.

susan.carroll@chron.com
http://www.chron.com/disp/story.mpl/front/6118065.html

A first-class job of investigative reporting by "The Houston Chronicle"! Perhaps newspapers aren't "obsolete" after all.