ALIPAC NOTE: This is what we are fighting against in case any of you have forgotten!
Two weeks ago, Juan Carlos Santos-Hernandez was sitting in a Forsyth County jail cell after being charged with three felonies in connection with the molestation of a 10-year-old girl.
A written plea offer prepared by prosecutor Kia Chavious spelled out the likely path for the 21-year-old: Plead guilty and the state will agree to let you be sentenced for one felony instead of three. You might get out in 25 years. Wait much longer or take your chances with a jury, you may die behind bars.
By: Scott Sexton Winston-Salem Journal Published: April 08, 2012
Now that's moot, thanks to an ill-advised policy being followed by the U.S. Immigration and Customs Enforcement Agency. Within a week or two, Santos-Hernandez could be lying on a beach in Acapulco, a free man sipping cervezas in Mexico.
"He very well may get a pass on these charges," Chavious said in court last week. "(ICE) understands our position, but there is no mechanism to stop it. Once the ball is rolling, nothing is going to stop it."
Road map to a loophole
As one might expect, the story of how a person charged with child molestation can get a get-out-of-jail-free card from the federal government involves more than a few twists.
Santos-Hernandez, whose last known job was a cook for a Winston-Salem chain restaurant, was arrested in October on one count of taking indecent liberties with a child. He went to jail and had bond set at $100,000. He stayed there while investigators continued to look into the allegations.
In early March, a grand jury indicted Santos-Hernandez on two additional felony counts — including the more serious charge of committing sex offense with a child that carries a mandatory 25-to-life sentence.
As is typically the case in crimes involving illegal immigrants, the federal government had issued a "detainer" on Santos-Hernandez. That means the minute he walked out of jail, he was subject to be deported.
What happened next defies common sense.
The scheme was outlined in court documents and in an "order for arrest" motion that Chavious argued Wednesday — a last-ditch legal maneuver that basically says Santos-Hernandez was never formally charged with the new crimes and needs to be brought back.
On March 22, Santos-Hernandez posted bond and left the county jail. (Because Santos-Hernandez technically did not flee custody willingly, his bond likely will not be forfeited.)
Predictably, ICE snatched him up and sent him to a federal detention facility in Georgia. It happened so fast his own lawyer didn't even know he had left the local lockup.
And because he waived his rights, Santos-Hernandez was put on the fast track for deportation.
Goodbye, prison. Hola, Mexico.
"It looks like he's using voluntary deportation as an escape hatch," Superior Court Judge Ron Spivey said to Chavious during the hearing. "Is that your concern?"
"It's something they're all looking into doing," Chavious said. "Post bond and trigger that 48-hour response (from ICE), then waive their rights. They're back home in a week or shortly thereafter."
U.S.: 'So what?'
Not that it should come as a tremendous shock, but the response from the federal government amounted to a huge "So what?"
Heck, the feds wouldn't even acknowledge they had Santos-Hernandez in custody — that information came out in state court last week.
"I'm not sure how long you've covered this stuff," said Temple Black, a regional public-information officer for ICE based in New Orleans, on Tuesday. "Ever heard of the Privacy Act? Send us an email, we'll staff it and see what we can do." Never heard back.
Deep down, state prosecutors know the feds aren't likely to send Santos-Hernandez back. Asking for an order for arrest on the new charges (and a new, bigger bond) essentially amounted to a legal "Hail Mary."
Terrence Hines, Santos-Hernandez' attorney, did what he was supposed to and argued for his client even though he was cooling his heels in Georgia.
"He won't be allowed to return (to the United States) for 10 years," Hines said. "It's not a blank check. He will be a free man in his home country, but he can't come back."
Spivey issued the order for arrest and set a new bond at $500,000, if he is ever arrested on the additional charges. "I can't think of any logical or rational explanation (for posting the first bond) other than it was done to escape prosecution," Spivey said.
The effect, in reality, is that a red flag got put in the system should Santos-Hernandez be stupid enough to slip back into this country.
That's no consolation. If the charges are true, somewhere in Forsyth County, a 10-year-old girl could carry emotional scars forever. In all likelihood, she and her family will be denied their day in court.
"Generally speaking, the only place appropriate for a child molester to be sent upon conviction would be prison for the rest of his natural life," said District Attorney Jim O'Neill. "And that's only because we're not allowed to execute them."