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January 15, 2017

Nebraska Supreme Court decides "undocumented status" can be proper, but not conclusive, sentencing factor when deciding on probation sentence

As reported in this local article, headlined "Immigration status can be used to help decide sentencing, Nebraska Supreme Court says," the top court in the Cornhusker State handed down an interesting ruling late last week. Here is the effective press summary of the decision:

A person’s immigration status can be considered when deciding if someone should be sentenced to probation rather than jail, though it cannot be the sole factor, the Nebraska Supreme Court ruled Friday. It was the first time the state’s highest court has weighed in on the issue of whether criminal defendants can be denied probation solely because they are in the country illegally.

Jose Cerritos-Valdez had appealed after being sentenced to 230 days in jail and a $500 fine for two misdemeanors, attempted possession of a controlled substance and driving under the influence. His driving privileges were revoked for one year.

During sentencing, Sarpy County District Judge David Arterburn expressed reluctance to sentence Cerritos-Valdez to probation. One condition of probation is to obey all laws, and to do that, the judge said, would require Cerritos-Valdez to leave the country, because he was in the United States illegally. Arterburn also said he’d like to get some guidance on the issue from a higher court.

The Supreme Court’s ruling, written by Judge Stephanie Stacy, said that while this is an unsettled area of law, a consensus has formed in other courts that defendants cannot be denied probation solely because they are in the country illegally.

The full ruling in Nebraska v. Cerritos-Valdez is available at this link, and here is the heart of the court's nuanced analysis (with footnotes/cites removed):

This case presents the narrow question of whether a defendant’s undocumented status is a relevant consideration when determining whether to grant or deny probation.  We have not previously considered this question, but other courts have.  

While the law in this area is not well settled, a consensus has developed that it is impermissible for a sentencing court to deny probation based solely on a defendant’s undocumented status.  Beyond that broad proposition, courts differ on when, or for what purpose, a sentencing judge may properly consider a defendant’s undocumented status when deciding whether to impose probation.

Generally, in discussing whether it was proper to consider a defendant’s undocumented status in connection with deciding whether to impose a sentence of probation, other courts have focused on whether the defendant’s status implicated other relevant sentencing considerations.  For instance, some courts have held it is appropriate to consider the effect of a defendant’s undocumented status on his or her ability or willingness to comply with conditions of probation.  Other courts have reasoned that a defendant’s undocumented status or a history of repeated illegal reentry into the U.S. may demonstrate an “unwillingness to conform his or her conduct to the conditions of probation” or show that a probation sentence would not “be at all effective” for that defendant.  Still others have held that the undocumented status of defendants may be considered as it relates to their criminal history.  At least one court has noted that a defendant’s undocumented status is properly considered as it relates to the defendant’s employment history or legal employability.  And we note that in some instances, defendants have specifically asked the sentencing court to consider their undocumented status, arguing it would be error not to consider it.

Based on the foregoing, we agree that a defendant’s status as an undocumented immigrant cannot be the sole factor on which a court relies when determining whether to grant or deny probation; however, a sentencing court need not ignore a defendant’s undocumented status.  When deciding whether to grant probation, a defendant’s undocumented status may properly be considered by a sentencing court as one of many factors so long as it is either relevant to the offense for which sentence is being imposed, relevant to consideration of any of the required sentencing factors under Nebraska law, or relevant to the defendant’s ability or willingness to comply with recommended probation conditions.

January 15, 2017 at 11:19 AM | Permalink

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