Posted on 08/21/2007 8:14:49 AM PDT by Sub-Driver
Thanks for taking time to read the decision and explain it here. I appreciate it.
It’s quite clear that there is a law that needs fixing, and an illegal that needs to be turned over to the feds.
Actually, it's not at all clear that there's a problem with the law. For example, if Congress changed USC1325 to make it an additional felony to remain here after the initial criminal act of illegally crossing the border, there is no apparent benefit, and most likely it's unhelpful. For example, if you enforce "presence crimes" as a felony, the resultant legal process will swamp prisons and courts; and if you don't enforce it as a felony, there's no procedural difference from what we have today.
What's lost in the shouting on this thread is the fact that this decision deals with whether or not a convicted felon can be denied probation because he's an illegal ... coupled with the fact that the trial judge "departed" from normal sentencing guidelines without following the established process.
Martinez remains convicted of his crimes -- it's the sentencing process that has been sent back down for a re-do.
It's nowhere near being a common question of law, and it's not at all clear to me that USC1325 needs to be changed to account for this particular instance.
As I noted above, I think the proper approach would be for the trial judge to impose an appropriate sentence (however defined) and at the end of it hand the guy over to the feds for deportation.
Where's the James Gang when we really need them on the job!
The Kansas legislature rules like an omnipotent despot. There is no right to referendum or petition in Kansas. In other words, there’s not a dam thing anyone can do about the law and the judges interpretation of same.
Why can’t we do what everyone one else does and has been doing throughout modern history.
Part of the Feds rational for not enforcing the law is that illegal entry is currently a misdemeanor, by making it a felony it would make it harder for the Feds to ignore. And as to your second point, the appellate court ruled that illegals are not breaking the law by being here. So by making illegal entry a felony those already here would be excluded from the application of that change.
I'm still trying to wrap my head around that one!
Regards,
GtG
But that's precisely why it might cause more harm than good. Due process issues will predominate if the Feds had to prosecute border crossing as a felony. Granted that they should be more assiduous in enforcing the current misdemeanor offense of border crossing, I fail to see how swamping the courts with several million new felony cases will help anybody. Especially since the net effect will be the same: the folks caught crossing will be sent back to the other side.
I'm still trying to wrap my head around that one!
The details of the case tell me that it's really not as big a deal as it's being made out to be. The issue here is one of whether or not Martinez should have been sentenced differently, and whether the "departure" rules were properly followed. Perhaps that change of perspective will provide solace?
IOW, you're suggesting that the problem is best attacked at the demand side, rather than the supply side.
I agree. There are technical issues, but they're surmountable.
I think there are probably several reasons why we're not attacking the demand side, and it's primarily a matter of where the focus currently lies.
The "immigration advocate" side naturally focuses on the "right" of people to cross our borders for economic reasons -- which pretty much requires that they take a position that doesn't punish the demand side of illegal immigration.
On the other side, there's that group of folks who are primarily focused on "closing the border," which addresses the supply side of the issue. From what I can see, a lot of these folks seem to regard the mechanisms needed to address the demand side as "Amnesty," and won't consider it.
It's an emotional issue for many -- I don't know that the current political climate (of which immigration is only one piece) will actually permit the sort of protracted and intelligent debate needed to accomplish anything meaningful. JMO....
I am reading all of this with complete intrique. Others have brought this following point to my attention but i WOULD LIKE TO EXPLORE IT FURTHER.
The appellate judge has ruled this admitted criminal is not also a criminal by having crossed the border illegally.
Mr. Appellate judge, what is the statute of limitations for crossing the border illegally to longer being a crime? In other words, how long after crossing the border illegally does it become legal?
No, that is NOT what the judge said. Not even close. Read the decision: it's linked above, and also in the article.
The judge cites a 1958 US Supreme Court decision which differentiates between the singular criminal act of illegally crossing the border; and the continued presence of an illegal immigrant after he has arrived.
The court noted that illegal immigrants are subject to punishment (i.e., deportation) for the singular criminal act. They are not subject to additional punishment just for being here, unless they've already been deported in the past.
As noted above the judge made a distinction based on whether or not Martinez was subject to USC 1325 if he hadn't been previously deported; and USC 1326 if he had been previously deported.
This may well highlight a loophole in USC 1325 with regard to granting probation to convicted felons in Kansas.
However, if you tried to close that loophole by making it a felony just to be here, even if you haven't been previously deported ... you'd end up swamping the criminal courts; and besides that, in most cases the response would be no different from what it's supposed to be now: deportation. Imprisonment would be utterly impractical.
I have read the decision of the appellate judge several times and agree that in his mind he believes that this alien broke the law by crossing the border illegally but no by being here (illegally in my opinion).
However, it is my contention that the trial judge believes that he is here illegally and had to factor that into his decision on probation vs jail time.
IMO the appellate judge negates the illegal border crossing act by overruling the trial judge. I am trying to split hairs (in reverse) here to show the appellate judge’s decision to split hairs to be flawed.
I do believe u and I agree more on this issue than disagree.
In his mind, and according to the precedent set by a 50 year old US Supreme Court decision. The latter is the governing consideration in his opinion.
It sounds like what you really want, is for the judge to take an activist role, rather than what he actually did, which was to interpret the law according to its actual wording, and previous precedent.
Count me out.
I am not in favor of activist judges unless you consider judges who follow activist judges and overturn their rulings to be activist as well.
I do see your point of view in the appellate judges decision. I do see “compelling” circumstances with the situation with the illegal alien which should be allowed to be considered as they often are in other cases.
The problem seems to me to be that in this case the prosecution had already agreed to probation for the drug smuggling of which the judge felt he could not agree. The jail term was still within the specified sentencing guidelines for the crime(s).
Judges are allowed to set aside plea agreements. In this case, the judge felt compelled to give reasons for the set aside which caused his ruling to be overturned by the appellate judge. The proposed sentence was not questioned, just the rationale.
And no, I agree with you, deportation is preferable to trials for most cases innvolving illegals.
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