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Convicted illegal aliens receive shorter sentences due to legal quirk

January 3, 2018

GOP USA

1/2/2018

Source …..

Had Sharafat Ali Khan been an American citizen, he likely would have been sentenced to 37 months in prison for masterminding a smuggling ring that brought more than 100 illegal immigrants from Pakistan and Afghanistan to the United States.

Instead, a federal judge in the District of Columbia sentenced Khan to only 31 months in October because he’s a deportable alien.

It’s one of the quirks of the American justice system. Because illegal immigrants and other criminal aliens usually aren’t released into halfway houses for fear they’ll abscond, they can — at least in some courtrooms — get a lesser sentence all around.

U.S. District Judge Reggie B. Walton, who sentenced Khan, said that if he’d given the human trafficker the full 37-month prison term, “the penalty that you experience is in fact be greater than the punishment U.S. citizens endure.”

Not satisfied with that leniency, Khan — who pleaded guilty — has filed a notice to the U.S. Court of Appeals for the D.C. Circuit, the very panel that set the precedent for an illegal immigrant to get a reduced sentence in a 1994 case. The appellate court ruled that a judge has the discretion to impose a reduced sentence because of immigration status.

It’s unclear how often it happens or in how many cases it would apply among the current prison population. The 1994 decision has been cited dozens of times since it was issued, but not all of the cases addressed the halfway house concern.

The appellate courts for the 2nd, 10th and 11th Circuits have ruled the other way, saying that reducing a sentence amounts to rewarding a felon for not being a citizen.

In the Atlanta-based 11th Circuit, a Burmese national, who had been convicted of selling cars with altered identification numbers, asked for a reduced sentence. He said a it would enable him to apply for asylum in the U.S., and he feared political persecution and torture in Myanmar because his father had spoken out against the government before the family fled to America.

The appeals court rejected that request.

“The effect of permitting a downward departure [reduced sentence] on these grounds would be to favor aliens with more lenient sentences than citizens of this country who commit the same crime and have the same criminal history,” Chief Judge Edward E. Carnes wrote in the 2003 case in the 11th Circuit.

Chief Judge Carnes said that, if anything, the law suggests aliens can be subject to harsher sentences than citizens.

Legal experts, however, note that judges do have a large amount of leeway, based on Supreme Court decisions on sentencing guidelines, and say Judge Walton was within his rights in reducing Khan’s sentence.

Solomon Wisenberg, a partner at the law firm Nelson Mullins Riley & Scarborough in Washington, D.C., said a judge can elect to issue a reduced sentence to a deportable alien if the felon were to face charges and punishment in his or her home country, or were to be extradited elsewhere to face trial after serving the punishment in the U.S.

Kevin McCarthy, a professor at John Jay College of Criminal Justice, said that while he agrees with Judge Walton’s reasoning for Khan’s reduced sentence, he himself wouldn’t have deleted a full six months from the criminal’s sentence.

“Where I disagree with the reasoning of this judge is his notion that an imagined punishment scale balances if one side has six months [in a] halfway house and the other side has zero additional incarceration,” Mr. McCarthy said.

“The math would have been rough, but a more logical decision would have cut the prison sentence by, say, three months to have arguable equivalency with eliminating six months in a halfway house,” he said.

The federal Bureau of Prisons has more than 35,000 non-U.S. citizens in custody.

“The vast majority of non-U.S. citizen inmates are transferred to the custody of ICE [Immigration and Customs Enforcement] upon completion of their sentence, and it is our understanding that most are subsequently deported,” said a Bureau of Prisons spokesman.

Judge Walton said he decided to cut Khan’s sentence, in part, because the pace of deportations is tricky.

The Trump administration insisted in court that Khan could be sent back to his home in Pakistan quickly. But Khan’s lawyers argued it could take a long time, forcing him to remain in ICE custody while it clears paperwork and gets official permission from Pakistan.

“I don’t know how long it’s going to take for you to be deported,” Judge Walton told Khan.

Deportable aliens are those in the country illegally or whose crimes invalidate their visitor status or green card.

Under Bureau of Prisons policy, they are not allowed to serve out the last part of their sentences in halfway houses. Sex offenders and inmates with medical issues or behavioral problems also cannot complete their sentences in halfway houses.

 

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  1. January 3, 2018 8:16 pm

    docfnc
    David Olen Cross writes on immigration issues and foreign national crime

    Oregon Department of Corrections: Criminal Alien Report December 2017

    January 2, 2018

    Data Compiled By David Olen Cross

    The Oregon Department of Corrections (DOC) December 1, 2017 Inmate Population Profile indicated there were 14,739 inmates incarcerated in the DOC’s 14 prisons.

    Data obtained from the DOC indicated that on December 1st there were 973 foreign nationals (criminal aliens) incarcerated in the state’s prison system; approximately one in every fifteen prisoners incarcerated by the state was a criminal alien, 6.60 percent of the total prison population.

    Some background information, all 973 criminal aliens currently incarcerated in the DOC prison system were identified by U.S. Immigration and Customs Enforcement (ICE), a federal law enforcement agency that is part of the U.S. Department of Homeland Security. If an inmate is identified by ICE as being a criminal alien, at the federal law enforcement agency’s request, DOC officials will place an “ICE detainer” on the inmate. After the inmate completes his/her state sanction, prison officials will transfer custody of the inmate to ICE.

    Using DOC Inmate Population Profiles and ICE detainer numbers, the following table reveals the total number inmates, the number of domestic and criminal alien inmates along with the percentage of them with ICE detainers incarcerated on December 1st in the state’s prisons.

    OREGON DEPARTMENT OF CORRECTIONS
    Month/Day/Year DOC Total Inmates DOC Total Domestic Inmates DOC Total Inmates W/ICE Detainers DOC % Inmates W/ICE Detainers
    December 1, 2017 14,739 13,766 973 6.60%
    Source: Research and Evaluation DOC Report ICE inmates list 01 December 17 and Inmate Population Profile 01 December 17.

    Using DOC ICE detainer numbers, the following table reveals the number and percentage of criminal alien prisoners incarcerated on December 1st that were sent to prison from the state’s 36 counties.

    OREGON DEPARTMENT OF CORRECTIONS
    County DOC Total Inmates W/ ICE Detainers by County DOC % Inmates W/ICE Detainers by County
    Marion 235 24.15%
    Washington 202 20.76%
    Multnomah 201 20.66%
    Clackamas 82 8.43%
    Lane 39 4.01%
    Jackson 37 3.80%
    Yamhill 23 2.36%
    Umatilla 22 2.26%
    Polk 16 1.64%
    Benton 15 1.54%
    Klamath 15 1.54%
    Linn 14 1.44%
    Deschutes 13 1.34%
    Malheur 9 0.92%
    Lincoln 7 0.72%
    Jefferson 5 0.51%
    Josephine 5 0.51%
    Wasco 5 0.51%
    Clatsop 4 0.41%
    Coos 4 0.41%
    Douglas 4 0.41%
    Hood River 4 0.41%
    Tillamook 3 0.31%
    Columbia 2 0.21%
    Union 2 0.21%
    Crook 1 0.10%
    Gilliam 1 0.10%
    Lake 1 0.10%
    Morrow 1 0.10%
    OOS (Not a County) 1 0.10%
    Baker 0 0.00%
    Curry 0 0.00%
    Grant 0 0.00%
    Harney 0 0.00%
    Sherman 0 0.00%
    Wallowa 0 0.00%
    Wheeler 0 0.00%
    Total 973 100.00%
    Source: Research and Evaluation DOC Report ICE inmates list 01 December 17.

    Here are the ways Oregon residents were victimized by the 973 criminal aliens.

    Using DOC ICE detainer numbers, the following table reveals the number and percentage of criminal alien prisoners incarcerated on December 1st by type of crime.

    OREGON DEPARTMENT OF CORRECTIONS
    Crime DOC Total Inmates W/ ICE Detainers by Type of Crime DOC % Inmates W/ICE Detainers by Type of Crime
    Sex Abuse 200 20.55%
    Rape 175 17.99%
    Homicide 136 13.98%
    Sodomy 101 10.38%
    Drugs 97 9.97%
    Assault 76 7.81%
    Robbery 52 5.34%
    Kidnapping 25 2.57%
    Burglary 23 2.36%
    Theft 15 1.54%
    Driving Offense 7 0.72%
    Vehicle Theft 5 0.51%
    Escape 1 0.10%
    Forgery 1 0.10%
    Arson 0 0.00%
    Other / Combination 59 6.06%
    Total 973 100.00%
    Source: Research and Evaluation DOC Report ICE inmates list 01 December 17.

    Using the DOC Inmate Population Profile and ICE detainer numbers from December 1st, the following table reveals the total number inmates by crime type, the number of domestic and criminal alien prisoners incarcerated by type of crime and the percentage of those crimes committed by criminal aliens.

    OREGON DEPARTMENT OF CORRECTIONS
    Crime DOC Total Inmates by Type of Crime DOC Total Domestic Inmates by Type of Crime DOC Total Inmates W/ICE Detainers by Type of Crime DOC Inmates W/ICE Detainers as a % of Total Inmates by Type of Crime
    Sex Abuse 1,731 1,531 200 11.55%
    Rape 971 796 175 18.02%
    Homicide 1,734 1,598 136 7.84%
    Sodomy 1,036 935 101 9.75%
    Drugs 836 739 97 11.60%
    Assault 2,026 1,950 76 3.75%
    Robbery 1,514 1,462 52 3.43%
    Kidnapping 280 255 25 8.93%
    Burglary 1,299 1,276 23 1.77%
    Theft 1,111 1,096 15 1.35%
    Driving Offense 217 210 7 3.23%
    Vehicle Theft 497 492 5 1.01%
    Escape 40 39 1 2.50%
    Forgery 47 46 1 2.13%
    Arson 72 72 0 0.00%
    Other / Combination 1,328 1,269 59 4.44%
    Total 14,739 13,766 973
    Source: Research and Evaluation DOC Report ICE inmates list 01 December 17 and Inmate Population Profile 01 December 17.

    Using DOC ICE detainer numbers, the following table reveals the self-declared countries of origin of the 973 criminal alien prisoners by number and percentage incarcerated on December 1st in the state’s prisons.

    OREGON DEPARTMENT OF CORRECTIONS
    Country DOC Total Inmates W/ ICE Detainers by Self-Declared Country of Origin DOC % Inmates W/ICE Detainers by Self-Declared Country of Origin
    Mexico 777 79.86%
    Guatemala 19 1.95%
    Cuba 17 1.75%
    El Salvador 15 1.54%
    Honduras 14 1.44%
    Vietnam 14 1.44%
    Federated States of Micronesia 9 0.92%
    Russia 9 0.92%
    Laos 5 0.51%
    Ukraine 5 0.51%
    Cambodia 4 0.41%
    Marshall Islands 4 0.41%
    Peru 4 0.41%
    Philippines 4 0.41%
    Canada 3 0.31%
    Ecuador 3 0.31%
    England 3 0.31%
    South Korea 3 0.31%
    Thailand 3 0.31%
    Other/Unknown Countries 58 5.96%
    Total 973 100.00%
    Source: Research and Evaluation DOC Report ICE inmates list 01 December 17.

    Beyond the DOC criminal alien incarceration numbers and incarceration percentages, per county and per crime type, or even country of origin, criminal aliens pose high economic cost on Oregonians.

    An individual prisoner incarcerated in the DOC prison system costs the state approximately ($94.55) per day.

    The DOC’s incarceration cost for its 973 criminal alien prison population is approximately ($91,997.15) per day, ($643,980.05) per week, and ($33,578,959.75) per year.

    Even taking into account fiscal year 2016 U.S. Bureau of Justice Assistance (BJA), U.S. Department of Justice, State Criminal Alien Assistance Program (SCAAP) award of $1,788,075.00, if the State of Oregon receives the same amount of SCAAP funding for fiscal year 2017, the cost to incarcerate 973 criminal aliens to the DOC will be at least ($31,790,884.75). Note: At this point in time there is no indication the U.S. BJA will provide SCAAP awards in 2017.

    None of preceding cost estimates for the DOC to incarcerate the 973 criminal aliens includes the dollar amount for legal services (indigent defense), language interpreters, court costs, or victim assistance.

    Bibliography

    Oregon Department of Corrections Population Profile December 1, 2017:
    http://www.oregon.gov/doc/RESRCH/docs/inmate_profile_201712.pdf

    Oregon Department of Corrections Population Profile (unpublished MS Excel workbook) titled Incarcerated Criminal Aliens Report dated December 1, 2017.

    Oregon Department of Corrections Issue Brief Quick Facts IB-53, January, 2017:
    http://www.oregon.gov/doc/OC/docs/pdf/IB-53-Quick%20Facts.pdf

    U.S. Bureau of Justice Assistance, State Criminal Alien Assistance Program (SCAAP), 2016 SCAAP award: https://www.bja.gov/funding/FY2016-SCAAP-Award-C.PDF

    David Olen Cross of Salem, Oregon writes on immigration issues and foreign national crime. This report is a service to Oregon state, county and city governmental officials to help them assess the impact of foreign national crime in the state. He can be reached at docfnc@yahoo.com or at http://docfnc.wordpress.com/

    https://docfnc.wordpress.com/2018/01/02/oregon-department-of-corrections-criminal-alien-report-december-2017/

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