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March 13, 2013

"Deporting the Pardoned"

The title of this post is the title of this notable paper by Jason Alexis Cade.  As the paper's abstract reveals, this work touches on various issues that ought to be of interest to a various sentencing fans:

Federal immigration laws make noncitizens deportable on the basis of state criminal convictions.  Historically, Congress implemented this scheme in ways that respected the states’ sovereignty over their criminal laws.  As more recent federal laws have been interpreted, however, a state’s decision to pardon, expunge, or otherwise set-aside a conviction under state law will often have no effect on the federal government’s determination to use that conviction as a basis for deportation.  While scholars have shown significant interest in state and local laws regulating immigrants, few have considered the federalism implications of federal rules that ignore a state’s authority to determine the continuing validity of its own convictions.

This Article contends that limitations on the preclusive effect of pardons, expungements, appeals, and similar post-conviction processes undermine sovereign interests in maintaining the integrity of the criminal justice system, calibrating justice, fostering rehabilitation, and deciding where to allocate resources.  In light of the interests at stake, Congress should be required to clearly express its intent to override pardons and related state post-conviction procedures.  A federalism-based clear statement rule for statutory provisions that restrict generally applicable criminal processes would not constrain Congress’s power to set immigration policy, because Congress remains free to make its intent clear in the statute. But the rule would ensure that Congress, rather than an administrative agency, has made the deliberative choice to upset the usual constitutional balance of federal and state power.

March 13, 2013 at 06:10 PM | Permalink


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Would this "rule" prevent state courts (and state prosecutors) from agreeing to expunge, modify and sometimes dismiss outright their own already adjudicated cases solely to avoid the immigration consequences?

As a state prosecutor in CA, I can tell you there are those within our ranks and on the bench who actively frustrate the very same federalism principles simply because they disagree with Congress's assessment of what criminal convictions warrant removal.

Posted by: David | Mar 13, 2013 10:51:23 PM

sounds to me like legal grounds for the local and state govt to use force to make the federal govt to recogize they are not the only ones in this country that have a set of laws to be respected. Last time i looked it was the people and the states that got together to create the federal govt...Not the other way!

Long past time they were reminded about it.

Posted by: rodsmith | Mar 14, 2013 9:48:18 AM


Why isn't it proper of a prosecutor to consider collateral consequences when exercising his or her discretion to determine the appropriate charge/punishment the State should seek based on any given set of facts?

Let's say someone has committed a relatively minor criminal act, and there are two statutes that could fit the crime. Both will result in, say, up to a year imprisonment, but one will also lead to deportation/lack of eligibility for student loans/lifetime sex offender registration, etc. Let's further say it's a first offender who is unlikely to even receive any actual incarceration time. In that case, it would seem that the collateral punishment (even if it's not considered "punishment" for ex post facto purposes, etc.) will far outweigh the nominal sentence. Why should the prosecutor not consider the collateral tail wagging the sentencing dog in order to fulfill his or her responsibility to see that justice is done?

Posted by: anon | Mar 14, 2013 10:50:55 AM

Anon - The reason is because to consider the collateral consequences elevates state authority over that of those who have primary responsibility either by election, or democratic appointment process, and necessarily arrogates ourselves without having been elected or appointed to enact, enforce or regulate the area in question.  Then there is the question of whether the DA or the Court is even sufficiently knowledgable about the policies and goals of the collateral consequence to excercise that judgment appropriately.  Finally, there are issues of diluted accountabilty.  For example, in immigration, the feds can blame the state for undoing convictions because they want to frustrate immigration law and the state can blame the feds for not removing people as required under the law.
There are also questions about equal application of the law.  It is rarely the case in CA where there are two statutes of equal seriousness that accurately capture the conduct, one of which has the collateral consequence and the other does not.  Typically the defense is seeking a charge that on its face is less serious in order to avoid the collateral consequence.
This is true whether the collateral consequence is one mandated by law, such as immigration, or one mandated by an employer in the private sector.  There are other players involved and my comment was trying to address that when we talk about respecting federalism, it is a two way street.  Admittedly, I have not read the article so my comment may not be directly relevant to the point of the article.

Posted by: David | Mar 14, 2013 9:10:29 PM

I have something to say, if i may please, its a situation and then a question to whom if may concern or in my case help, I was born in portugal and my parents came to u.s.a right after i had just turned 6 years of age. Gaining Lgal Resident Alien Status I started working at 13 years old part time, went to school, through high school and consistently working throughout up until the age of 30, at which time i owned my own business making very good money, Got myself involved in drugs for not even 1 years time, found myself lost in them, I couldnt make enough money, even with my business to support my habbit, so I robbed in order to support my habbit, All of these armed robberies happened within a couple of months time, I was convicted to 3 and 1/2 years in state prison, never had issues with police in my life, I was effected by the money and the drugs took me in, i made a mistake and admit my errors, but no one was ever harmed or threatened in anyway, i didnt kill anyone, touch their child or serious crimes of that nature. Now I have no legal recourse because federal mandate deports automatically any convicted felon with at least 1 year of prison term, Everything i know is there in the u.s.a, I was raised there, That is my language, Now im deported to an Island I visited maybe once or twice in my life just because i wasnt born there. I had no choice, I was 6 years of age. I arrive here and get a temporary contract working for government hospital doing general maintenance for 3 years, my contract is now over, I have a daughter who is only 1 1/2 years old born here, i have done right since I have been placed here with no option about the matter with now no job, a family to support and no oppurtunity to establish a life here, im alienated by locals because I was deported, labeled as no good, im a human like anyone else, A child to a mother like everyone else in this world. Everyone has weaknesses in their lives, Mine I found very late in life, But i paid for it, and i learned from it, I bettered myself and do daily with my addiction problem. I also have my family, Mom, dad, sis, aunts cousins, everyone I ever cared about is not here, my mother is diabetic and only worsening at her age is not her vision, Shes burned out because she lost a son, her son, I need to be able to have my daughter grown up with their grandparents, my daughter is the only niece they have, They need their son back and I know I need my family back, There is nothing here for me except for no jobs and no future, Is there any hope Of me being reunited with my family to at least visit with my mom while she is still here, for her to see her only grandchild. I would like to know why im so many U,S citizens can create crims repeatedly, Go in and out of judiciary system and its ok as long as you do your time, and if you do something again obviously consequences will occur, But people like me just make 1 mistake and its all over, Shipped to a place that to anyone else would be cruel punishment, I know nothing here. I would like to know if anyone can help of direct me or tell me how i may or if I may apply to see my family again. Thank you for your time(s)

Posted by: Helio | Apr 17, 2013 9:50:19 AM

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