Download the full report - Human Rights Watch

More documents

Recommendations

Info

offenses, as well as “proportionality in sentencing through a system that imposes appropriately different sentences for criminal conduct of differing severity.” 10 In 2005, the Supreme Court ruled in United States v. Booker that the sentencing guidelines were not mandatory and that judges have the discretion to depart from these guidelines. 11 Judges, however, must still consult the guidelines, and according to a 2012 report by the Commission, “[t]he sentencing guidelines have remained the essential starting point in all federal sentences and have continued to exert significant influence on federal sentencing trends over time.” 12 The sentencing guidelines apply to felonies and Class A misdemeanors (misdemeanors for which the maximum sentence is one year or less but more than six months). 13 Sentencing guideline 2L1.2, for “Unlawfully Entering or Remaining in the United States,” applies to defendants convicted of felony illegal reentry or a second or subsequent charge of misdemeanor illegal entry. 14 Guideline sentences are calculated based on a combination of the “offense level” and the defendant’s criminal history. The offense level for an illegal entry offense is based on the defendant’s prior conviction or convictions. Guideline 2L1.2 treats certain prior criminal convictions—for crimes of violence, drug trafficking (for which a sentence of 13 months or more was imposed), child pornography, firearms offenses, national security or terrorism offenses, human trafficking, or alien smuggling—as most serious, warranting a significant 16-level increase in offense level. Other prior convictions result in increases of 4, 8, or 12 offense levels. 15 10 US Sentencing Commission, 2012 Sentencing Guidelines Manual, http://www.ussc.gov/Guidelines/2012_Guidelines/index.cfm (accessed April 12, 2013). 11 United States v. Booker, 543 U.S. 220 (2005). 12 US Sentencing Commission, “Report on the Continuing Impact of US v. Booker on Federal Sentencing,” 2012, http://www.ussc.gov/Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Booker_Reports/2012_Booker /Part_A.pdf (accessed April 25, 2013). 13 18 US Code Section 3559(a)(6) (2012). 14 US Sentencing Guideline 2L1.2, Unlawfully Entering or Remaining in the United States (2012). 15 Ibid. A conviction for a drug trafficking offense for which the sentence imposed was 13 months or less results in an increase of 12 levels; a conviction for an aggravated felony, 8 levels; a conviction for any other felony, 4 levels; and convictions for three or more misdemeanors that are crimes of violence or drug trafficking offenses, 4 levels (with some variations for older offenses). 15 HUMAN RIGHTS WATCH | MAY 2013
The defendant’s criminal history category is determined based on the number and seriousness of the defendant’s prior convictions, with I being least serious (including those with no or one minor prior conviction) and VI being most serious. 16 Convictions that are more than 15 years old are generally not counted in assigning the defendant to a criminal history category, though they do count for the offense level. 17 The offense level and the criminal history category are considered together to come up with a “guideline” sentence. For example, a defendant with one prior felony conviction for illegal reentry, for which he received a sentence of six months, who was then arrested for a second illegal reentry offense while on supervised release (i.e., probation), would be at offense level 12 and criminal history category III, and face a guideline sentence of 15 to 21 months. A defendant with one prior aggravated assault conviction who served one year in prison would be at offense level 24 and criminal history category II, and thus face a guideline sentence of 57-71 months. 18 For all federal crimes, a defendant who pleads guilty will typically get a reduction in offense level for “acceptance of responsibility,” and many defendants accept “Fast-Track” plea deals in which they receive a significant reduction in offense levels in exchange for a waiver of certain rights. 19 So the above calculations are based on what defendants would face if they were convicted at trial. In 2010, the US Sentencing Commission amended the sentencing guideline for “unlawfully entering or remaining in the United States” to recognize “cultural assimilation” as a valid reason for granting a lower-than-guideline sentence, to be considered in cases where, in part, “those cultural ties provided the primary motivation for the defendant’s illegal reentry or continued presence in the United States.” 20 The provision, however, has not necessarily led to more “departures” from the guidelines (more lenient criminal sentences). (For more information, see section III: Criminal Prosecutions Impinge on the Rights to Family Unity and to Seek Asylum.) 16 US Sentencing Guideline 4A1.1 (2012). 17 Ibid. 18 See US Sentencing Commission, 2012 Federal Sentencing Guidelines Manual, “Sentencing Table,” http://www.ussc.gov/Guidelines/2012_Guidelines/Manual_PDF/Sentencing_Table.pdf (accessed April 7, 2013). 19 US Sentencing Guideline 3E1.1 (2012) (“Acceptance of Responsibility”); Memorandum for all US Attorneys from James M. Cole, deputy attorney general, US Department of Justice, “Department Policy on Early Disposition or ‘Fast-Track’ Programs,” January 31, 2012, http://www.justice.gov/dag/fast-track-program.pdf (accessed April 7, 2013). 20 US Sentencing Guideline 2L1.2. TURNING MIGRANTS INTO CRIMINALS 16
Page 1 and 2: H U M A N R I G H T S W A T C H TUR
Page 3 and 4: All rights reserved. Printed in the
Page 6 and 7: Summary “I have not lost the desi
Page 8 and 9: Alicia’s comments above suggest,
Page 10 and 11: The breadth and scope of criminal p
Page 12 and 13: Recommendations To the US Congress
Page 14 and 15: Methodology This report is based on
Page 16 and 17: I. Background Illegal entry and pre
Page 18 and 19: 13 HUMAN RIGHTS WATCH | MAY 2013
Page 22 and 23: The guideline for illegal entry off
Page 24 and 25: The Obama administration deported a
Page 28 and 29: II. Criminal Prosecutions Fail to F
Page 30 and 31: Sentencing Commission Data: Limits
Page 34 and 35: TABLE 2: PERCENT CHANGE IN THE APPL
Page 36 and 37: The rising number of prosecutions o
Page 38 and 39: Critical Views of Judges and Attorn
Page 40 and 41: According to court records and thei
Page 42 and 43: these defendants, the stages of a f
Page 44 and 45: other court staff, Streamline proce
Page 46 and 47: Diverting Resources from Serious Cr
Page 48 and 49: III. Criminal Prosecutions Impinge
Page 50 and 51: ecently deported, 110 a trend also
Page 52 and 53: again illegally; such individuals
Page 54 and 55: Being in jail in Pecos was hard on
Page 56 and 57: experience, “One or two out of te
Page 58 and 59: probation and did not serve any tim
Page 60 and 61: who was starting to get in trouble
Page 62 and 63: “Though I’m in jail here, I fee
Page 64 and 65: Immigration law separates these fam
Page 66 and 67: were targeting schoolchildren as po
Page 68 and 69: esources. The problems were highlig
Page 70 and 71:
Edgar Holguin, an assistant federal
Page 72 and 73:
In addition to the trauma criminal
Page 74 and 75:
IV. Is It Worth It? The US governme
Page 76 and 77:
CBP also claims that its statistics
Page 78 and 79:
particular migrant. Criminal statut
Page 80 and 81:
Bureau of Prisons has contracts wor
Page 82 and 83:
there is nowhere to run. There is n
Page 84 and 85:
officials had looked at this case:
Page 86 and 87:
Upon arrival in Mexico, Carlos, who
Page 88:
TURNING MIGRANTS INTO CRIMINALS The
show all

Download the full report - Human Rights Watch

Create successful ePaper yourself

Delete template?

Save as template?