Jailhouse Lawyer's Handbook - Sentencing and Justice Reform ...

United States “without regard to any differences of
race, of color, or nationality.” Wong Wing v. United
States, 163 U.S. 228 (1896); Plyler v. Doe, 457 U.S.
202 (1982). This means that all persons within the
territory of the United States are entitled to the
protection guaranteed by the Fourteenth Amendment.
In Chapter Two, Section C, Parts 3, 4, and 5 of this
handbook, you learned that the Fourteenth
Amendment protects your right to due process in
disciplinary proceedings and administrative
segregation, and your right to equal protection, which
prohibits race, gender, and other forms of
discrimination. Since non-citizens are also protected
by the Fifth and Fourteenth Amendments, you can
raise violations of due process and equal protection in
the same ways that citizens can, through Section
1983 actions.
Non-citizens who are serving prison sentences are
also protected by the Eighth Amendment right to be
free from cruel and unusual punishment. As you
learned in Chapter Two, Section C, Parts 7, 8 and 9,
the Eighth Amendment protects you from guard
brutality in prison, as well as guaranteeing you safe
prison conditions and some level of medical care.
B. POTENTIAL FOR DEPORTATION OR
REMOVAL
One of the most important things to be aware of as a noncitizen
prisoner is that if you have been convicted of a
certain kind of crime (as defined by the relevant statute,
described below), you may be deportable after you have
served your sentence. If you are determined to be
deportable, you could be detained after you have finished
serving your sentence and held for an uncertain period
of time before you are deported from the country.
Your rights in this area may depend on your
immigration status at the time you were prosecuted,
but both admitted and inadmissible non-citizens can
still be removed for criminal convictions under
certain circumstances. The category of crimes for
which a convicted non-citizen may be removed
differs depending on what law was in effect when
your criminal proceeding began.
There are currently three laws under which a noncitizen’s
potential for removal can be evaluated.
If your case began prior to 1996, it is governed
by “old law.”
If your case began between April 24, 1996 and
April 1, 1997, it is governed by the Anti-
Terrorism and Effective Death Penalty Act of
1996, often referred to as “AEDPA.”
If your case was began after April 1, 1997, it is
governed by the Illegal Immigration Reform and
Immigrant Responsibility Act, referred to as
“IIRIRA.”
These laws will almost certainly change in the
future, so if you are researching this area, it is
important to make sure you have the most up-to-date
materials available. If you think that you might be
deportable on criminal grounds, you may be able to
challenge your deportation, so it is important to
understand this area fully and figure out which law
applies to your case. You should try to contact an
immigration attorney to learn more about your status
and your rights.
Appendix G: Protection of
Prisoners Under International
Law
Along with the U.S. Constitution, your state
Constitution, and federal and state laws, another
potential source of protection for prisoners is
international law. However, using international law
in United States courts is very difficult and
controversial so you may not want to attempt it
without a lawyer. This appendix will outline some
basic facts about international law, and provide you
with resources should you want to explore the area
further.
There are two main sources of international law:
“customary international law” and treaties.
Customary international law is unwritten law based
on certain principles that are generally accepted
worldwide. Treaties are written agreements between
countries that set international legal standards.
Customary and treaty-based international law are
supposed to be enforceable in the United States, but
sometimes it is difficult to get courts here to follow
them.
Customary international law prohibits several
practices, such as slavery, state-sponsored murders
and kidnappings, torture, arbitrary detention,
systematic racial discrimination, and violation of
generally accepted human rights standards.
Restatement (Third) of Foreign Relations Law,
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