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May 24, 2008

More proof all hot political issues become federal sentencing matters

Two very different items in this news confirms what I love to tell my students: every hot political issue will in some way and at some time become a sentencing matter.  Here is today's evidence:

1.  The New York Times has this big story suggesting that the Bush Administration is now eager to make federal crimes out of immigration cases that had been previously dealt with civilly.  Here is how the story starts:

In temporary courtrooms at a fairgrounds here, 270 illegal immigrants were sentenced this week to five months in prison for working at a meatpacking plant with false documents.  The prosecutions, which ended Friday, signal a sharp escalation in the Bush administration’s crackdown on illegal workers, with prosecutors bringing tough federal criminal charges against most of the immigrants arrested in a May 12 raid.

Until now, unauthorized workers have generally been detained by immigration officials for civil violations and rapidly deported.  The convicted immigrants were among 389 workers detained at the Agriprocessors Inc. plant in nearby Postville in a raid that federal officials called the largest criminal enforcement operation ever carried out by immigration authorities at a workplace.

Matt M. Dummermuth, the United States attorney for northern Iowa, who oversaw the prosecutions, called the operation an “astonishing success.” Claude Arnold, a special agent in charge of investigations for Immigration and Customs Enforcement, said it showed that federal officials were “committed to enforcing the nation’s immigration laws in the workplace to maintain the integrity of the immigration system.”

The unusually swift proceedings, in which 297 immigrants pleaded guilty and were sentenced in four days, were criticized by criminal defense lawyers, who warned of violations of due process. Twenty-seven immigrants received probation.  The American Immigration Lawyers Association protested that the workers had been denied meetings with immigration lawyers and that their claims under immigration law had been swept aside in unusual and speedy plea agreements.

2.  The Tuscaloosa News has this notable commentary noting the First Amendment issue being raised in a high-profile criminal appeal:

When former Gov. Don Siegelman called Thursday to get my email address so he could sent a copy of his 99-page appeal of his federal conviction on fraud charges, he said to pay close attention to the fifth argument his team of attorneys were making. It maintains that the court violated his First Amendment rights by increasing his sentence to more than seven years "based on out-of-court statements on matters of grave concern."

Essentially, what the former governor, who spent nine months in prison before being sprung by the 11th Circuit Court of Appeals on bond, says is that presiding and sentencing Federal Judge Mark Fuller punished him for speaking out against what he saw were injustices in his case and the political machinations surrounding it.

May 24, 2008 at 12:05 PM | Permalink


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"The New York Times has this big story suggesting that the Bush Administration is now eager to make federal crimes out of immigration cases that had been previously dealt with civilly."

How's that? The Administration is eager to MAKE federal crimes...?

Not exactly. They were federal crimes to start with. It was CONGRESS'S decision to make them such. Does the Administration control Congress?

What is actually going on is that, in this instance, the Administration decided to stop looking the other way and enforce the criminal sanctions Congress adopted.

From all appearances, this was a good place to start. When almost 300 illegal immigrants show up at a single plant in Iowa (not exactly a border state), all of them with counterfeit papers, what you have is an organized illegal immigrant smuggling ring. And they all show up at the aptly named Agriprocessors Inc.

Now how did that happen?

Perhaps Agriprocessors Inc. had nothing to do with it, but you wouldn't want to bet the ranch on that. In any event, when 270 people plead guilty, it's a little hard to believe that nothing illegal was going on.

To say the least, our current methods of stemming illegal immigration aren't working. It therefore hardly seems out of line to try something different -- such as, for example, enforcing the law instead of whistling past it.

Posted by: Bill Otis | May 24, 2008 12:47:56 PM

Good for Siegelman!

Mr. Otis, the word smuggling isn't in the article. Are you adding unsubstantiated charges to the complaint?

Posted by: George | May 24, 2008 3:14:24 PM

Fair point about my use of the term "make," Bill, though I think the context of my comment is accurate in light of the NYT report. Moreover, your comment spotlights the whole point here: the Bush Administration is now apparently trying "something different," though it is not entirely clear why now and why in this one Iowa setting.

I share your concerns about the possible role of the employer, though wouldn't that be a reason to try to move the cases along more cautiously and see if one can find evidence (through the help of cooperators) of a "king-pin" smuggler to go after?

In other words, as the criminal justice system is being empoyed to deal with the "smoke" of illegal immigration in employment, I wish there was some account of an effort to put out the real source of the "fire."

Posted by: Doug B. | May 24, 2008 3:24:24 PM


"Mr. Otis, the word smuggling isn't in the article. Are you adding unsubstantiated charges to the complaint?"

I haven't gone back to re-read the article, but I'll assume you're correct that the word "smuggling" isn't in it. However, a person reading the article is at liberty to draw reasonable inferences from it. Having dealt with cases roughly similar to this, I can tell you that when a whole bunch of illegal immigrants show up at a single employer a long, long way from the border, all outfitted with fake ID that they would have quite a tough time getting on their own, there is at the minimum a reasonable suspicion that the employer was up to his eyeballs coordinating, if not bankrolling, a smuggling operation.

Something like this doesn't happen by magic. Somebody was behind it. So ask yourself: Who had the most to gain?

Posted by: Bill Otis | May 24, 2008 10:30:59 PM


I don't disagree. I have no inside knowledge of the case, so for all I know the government has one or more cooperators. The article said that 27 immigrants were put on probation instead of going to jail, so I wonder what is going on with that. I also wonder if there are immigrants or other persons with knowledge of whom the article's author is simply unaware.

If the government does have a cooperator, they'd be nuts to advertise it to the press at this point. Employers who exploit illegal immigrants have been known to make haste to get to the shredding machine.

Posted by: Bill Otis | May 24, 2008 10:43:46 PM

Since it seems that Mr. Otis and others will comment on criminal matters resolved via a plea agreement without reading the plea agreement, I guess the best we can do is “draw” inferences that seem to suit our political goal.

Now, granted non-lawyers don’t really have the capacity to understand what these people were charged with (or plead guilty to), but when talking to lawyers you probably need to read the underlying documents.

Posted by: S.cotus | May 25, 2008 9:12:55 AM


"Since it seems that Mr. Otis and others will comment on criminal matters resolved via a plea agreement without reading the plea agreement, I guess the best we can do is 'draw' inferences that seem to suit our political goal."

1. I believe Professor Berman was one of the "others" to have commented on the case without reading the plea agreements. In that event, I count myself in good company.

2. I did, however, read the entire article Professor Berman linked, and therefore had as much (and as little) information as the article conveyed. I also used specifics of it in ways you do not and reasonably could not dispute, settling instead for a broadside.

3. The inferences I drew were from the facts as reported by the New York Times, not from a political agenda. If you can show otherwise, feel free.

4. In fact, the immgration issue has a complicated political agenda, with some fairly conservative Republicans (e.g., Bush and McCain most prominently) being for a relatively forgiving policy, and others taking a tougher line. I believe one point of agreement, however, is that for whatever the future policy may be, we should at least start by enforcing existing law more consistently.

5. The logic of your post is not limited to plea agreements. It would require would-be commenters to read, in cases resolved by trial, the trial transcript. Do you think that should be a prerequisite to commenting? If not, why not? What about suppression hearings? Competency hearings? Sentencing hearings? Can you name a single poster here who has uniformoy read the original documents of a case before commenting on it?

I'm all for reading the original documents, but as a practical matter, that would make commenting here -- for you, me and almost everyone else -- at best so slow that any given story would become old news, and at worst so cumbersome at to squelch the great bulk of comments altogether.

Is that your aim?

Posted by: Bill Otis | May 25, 2008 3:56:17 PM

I am sure that you are in “good” company, but lawyers should never comment on legal matters without, at a minimum, reading the underlying source material. Sure, when talking to non-lawyers you can get sloppy (as they really don’t deserve details), but when talking to lawyers you have to do better.

Most of the time I don’t comment on trials, and they really don’t matter that much. However, if you are going to comment on what actually went on at a trial (as opposed to legal arguments on appeal or within motions), you sure as hell better read a transcript. We have standards.

That is why real lawyers read the source materials before speaking.

As to the substance of your comments, a lot of what you said seems political. A decision to enforce something criminally (instead of civilly) is an act of prosecutorial discretion, as is offering rather lenient plea offers. There plusses and minuses to both approaches. However, you play it off like somehow the administration was never enforcing the laws and suddenly woke up and started enforcing laws that were ignored. So, in this case, when 270 people plead guilty, I reach two conclusions 1) very lenient offers were made; and 2) the prosecution gave up something.

Strangely, there seem to be no evidence that anyone that plead guilty actually was running the smuggling ring. But, again, since we don’t have the underlying documents, and have to rely on the NY Times (which, itself is relying on press releases) we won’t know, unless someone wants to play lawyer and surf around PACER.

Personally, I think the only way to stem the tied of illegal immigration would be to prosecutor those that use the serves of illegal immigrants. So, for example, the feds should arrest all patrons of diners and other restaurants that benefit from their cheaper labor. This means arresting middle class people (and their kids). Sure, it would mean that twenty to thirty percent of the country would be branded felons within the next year (and probably another ten percent in the year after), but I don’t see a more effective way of stopping illegal immigration.

Posted by: S.cotus | May 25, 2008 10:40:37 PM

This thread is actually tied with the political judges thread. Prosecution suffers from the same fear of public reprisal as judges do. The irony is that most news reports on crime, like illegal immigration, read something like a police report, meaning law enforcement is embedded with the media like reporters were embedded with the troops during the Iraq invasion. During an election year, both prosecutors and judges must live up to the one-sided hype.

Posted by: George | May 26, 2008 11:20:03 AM

Here's a perspective from a tax paying non-lawyer. I believe it costs somewhere in the vicinity of $30,000 per year to house a federal inmate. Divided by 12 that's $2,500 per month. Multiply that by five months and you have $12,500 per prisoner. Multiply that by 270 and you have $3,375,000. Would it cost $3,375,000 to deport them?

But wait, that's irrelevant. After we've spent the money to imprison them for five months, we STILL have to spend the money to deport them. And, of course, they're looking at doing this to lots more than 270 people. Our prisons are overcrowded and we're having difficulty finding the money to take care of the inmates we've already got. What, exactly, am I as a taxpayer getting for all these extra millions of my dollars?

Posted by: disillusioned layman | May 26, 2008 1:49:00 PM

I'm a steel worker.

The solution seems obvious to me also. A mandatory 30 days in jail for whomever hires or rents to an illegal immigrant. 90 days for a second offense.

We should vigorously enforce the plain meaning of the 14th amendment. Obviously, children of illegals are not US citizens, and we should stop supporting they and their families with welfare.

I also question the purpose of trials for illegals. Save for basic human rights, illegals have no constitutional rights. The government may search, detain, etc illegals at will. If it takes 5 months in prison before we get to deporting them, I see no harm in that.

Posted by: Mike | May 27, 2008 12:29:08 PM

This is just crazy. These immigrants, mainly from Guatemala, had brought renewed life and hope to the town of Postville, Iowa, which had been faced economic collapse from a disappearing population. A Postville teacher wrote this account of the immigration raid affecting many of her students: http://www.sistersofmercy.org/index.php?option=com_content&task=view&id=1373&Itemid=193

Along with being horrified about children being left with no one to care for them, and being terrified by immigration officials who tried to enter a school bus she was on, the teacher writes that now her livelihood, as well as that of everyone else employed by the school, is threatened by the sudden large decrease in the student population. And apparently it isn't enough to terrorize and economically devastate this town - the feds have to not only deport these people, but keep them in prison for several months first? These immigrants are NOT criminals - simply being in this country without documentation was until now generally treated as a status offense and not a crime. When this kind of thing happens, it is clear that this country is is deep, deep trouble.

Posted by: Kathy | May 27, 2008 1:35:25 PM


OK, let's take this one line at a time.

"Along with being horrified about children being left with no one to care for them..."

This is true of everyone sent to prison. The worst axe murderer can have innocent children left behind when he/she is incarcerated. Should having children exempt a person from going to jail for a crime? And who is responsible for these children being in the United States to begin with? Did the government bring them in?

"...and being terrified by immigration officials who tried to enter a school bus she was on..."

Should immigration officials not have the right to enter a school bus? What statute or regulation says that? Would you have preferred that they enter the school? Or the kids' homes?

"...the teacher writes that now her livelihood, as well as that of everyone else employed by the school, is threatened by the sudden large decrease in the student population."

So we should take a psss on immigration law in order that the local economy can maintain the status quo? By the way, has anyone at the school actually been fired? Or is this just speculation? And for that matter, is there some reason these jobs could not have been filled, or cannot be filled now, by LEGAL immigrants -- you know, the ones who stood in line and followed the rules?

"And apparently it isn't enough to terrorize and economically devastate this town - the feds have to not only deport these people, but keep them in prison for several months first?"

The "feds" do not pronunce prison sentences. Lifetime tenured judges do. As the article points out, the illegal immigrants could have been charged with identity theft (they were using Social Security numbers that belonged to other, living people). So the prison sentences were a good deal less than they could have been.

By the way, would you like YOUR Social Security number to be appropriated by an illegal immigrant? Or anyone?

"These immigrants are NOT criminals..."

That's odd. With the assistance of counsel, 270 of them pleaded guilty to crimes. Occasionally I have seen stories about "false confessions," but I have never seen a story about 270 false confessions in the same case.

"...simply being in this country without documentation was until now generally treated as a status offense and not a crime."

And the result has been a wave of illegal immigration that is now thoroughly out of control.

"When this kind of thing happens, it is clear that this country is is deep, deep trouble."

The country is in trouble, not because it enforces democratically enacted laws, but because it enfoces them so sporadically.

Posted by: Bill Otis | May 27, 2008 2:59:55 PM

Mr. Otis, This reply has me torn. On the one hand, Kathy is a flake. On the other hand, you seem hell-bent on putting everyone in jail.

To begin. The country is not in trouble. You are just saying that because it is your political belief. The country is fine. We can even fight multiple wars at once.

First of all, the US Code does not criminalize mere undocumented presence in the United States. Children of illegal immigrants have committed no crime. Arguably, Congress could made these children’s presence a crime, but it did not. You neglected to deal with this issue in your analysis.

Second of all, it is not beyond the realm “reasonable” to argue that children have some interest in being raised by their own parents under the constitution. Granted, most parents do more harm then good (like letting kids watch TV, which is basically abuse) and the state does have some interest in putting as many people as possible in jail.

Third, whether you like it or not, our economy does rely on illegal immigrants. Sure, it is cool to say that it is the foreigners that are the problem, but somehow all you law and order types seem to resist the idea that you should be put in jail for patronizing restaurants that hire illegals. After all, you people do have some good idea that any restaurant that charges less than $15 for a hamburger probably has a couple people in back with less than complete paperwork. Therefore, you people are part of the problem.

Fourth, Yes. A lot of laws are “taken a pass on” to maintain the status quo. If we really enforced all the laws, all the time, we would start arresting people that normally are not arrested. So, for example, while it is normal to arrest poor black people for drinking in public, there is no way that people attending classical music concerts in the park will ever be arrested for a little wine. This is the status quo, and we like it that way.

Fifth, While having a social security number used be an illegal immigrant is probably bad, there are far worse forms of identity theft. Simply credit card fraud (often committed by red-blooded Americans) is far worse, in my opinion.

Sixth, The argument about the guilty pleas in the mass immigration detention was not that confessions were coerced or the pleas were not knowing and voluntary, but that the defendants didn’t have the opportunity to pursue relief administratively. Granted, Kathy is a flake (i.e. a non-lawyer), and we don’t need to take her serious, but you could have at least addressed that argument.

Seventh, I don’t know if the “wave of immigration” is out of control. It seems to be “controlled” by all the restaurants and others willing to hire them.

Posted by: S.cotus | May 28, 2008 7:44:42 AM


You do a good job of taking up for Kathy. Still, I would have hoped she would respond on her own.

Without going through the whole thing again, I'll just say that, on reflection, I think you are partly correct in saying that the country is not in trouble. I accepted Kathy's premise that it is too quickly.

The country has some serious problems just now, e.g., insufficient moral confidence in our institutions and virtues; living on a mountain of debt, public and private; gross overspending on a bloated government the Framers never envisioned; dumbed-down educational standards; increasing sentimentalization of law; and discounted personal responsibility in favor of blaming someone or something else. Still, the country is amazingly strong and resilient, so I hope you're right about our not being in trouble.

Posted by: Bill Otis | May 28, 2008 4:10:47 PM

Wow, Bill a lot of facts I'd never heard. Hope your sources are biased (i.e. BS)

Posted by: Fake ID Girl | Aug 5, 2008 4:20:42 PM

Working for government department where each and every word is confidential. Knowing that your shredded documents cannot be reassembled and that your confidential information is safe is worth every cent of the cost of a paper shredder

Posted by: File Shredders | Jan 27, 2009 1:57:51 PM

Working and maintaining security throughout the office. I Placed shredder next to the copier or printer, these shredder models will stop information leak before it starts.

Posted by: Paper Shredders Ratings | Jan 27, 2009 1:58:33 PM

The saleman told me from whom I bought the shredder. All office shredders roll on casters for convenient sharing among offices. Every shredder model has a 10-year warranty on cutting heads and can take staples and paper clips which saves office stationary too.

Posted by: Paper Shredders for Sale | Jan 27, 2009 1:59:14 PM

Living in Florida there was an urgent need of shredder in the office so I called up the saleman who told me there was No sales tax on purchases delivered out of California! 10 year warranty on cutting heads & 1 year warranty on mechanical parts (parts only)!

Posted by: File shredder | Jan 27, 2009 1:59:59 PM

The average office shredder does nothing to alter the computers where the vast majority of those paper documents originated.

Posted by: Paper Shredder for Sale | Jan 27, 2009 2:01:56 PM

According to the investigations Andersen partner David Duncan allegedly headed an effort to destroy documents related to Enron after learning the Securities and Exchange Commission had requested financial records from the company.

Posted by: industrial shredder | Jan 27, 2009 2:02:33 PM

In a civil case, a judge can allow the jury to question a document-destroying party’s intentions. For example, judges in certain cases will tell jurors they should assume missing documents are harmful simply because they were destroyed–even if they never see the contents.

Posted by: Paper Shredder Price | Jan 27, 2009 2:03:15 PM

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