Criminal Defense of Immigrants


§ 3.60 (C)

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(C)  Resources.  Can & Valladares, A Renewed Call to the Sentencing Commission to Address Whether Cultural Factors Can Serve as a Basis for Downward Departures, 14 Fed. Sent. R. 279 (March-April, 2002) (concise but helpful pre-Patriot Act analysis of culture and sentencing guidelines, distinguishing “culture” “from the prohibited departure ground of “national origin”); Coleman, Individualizing Justice through Multiculturalism: The Liberals’ Dilemma, 96. Columbia Law Rev. 1093 (1996) (comprehensive discussion, taking the position that culture should serve as mitigation only and not as a complete defense; difficulty of use of culture as an “integrated defense” negating mens rea, as the practice of culture is generally very deliberate; contains review of the literature); Gomez, The Dilemma of Difference: Race as a Sentencing Factor, 24 Golden Gate Law Rev. 357 (1994) (discusses race in general with respect to federal sentencing downward departures, and in general terms, the Kimura parent-child suicide, zij poj niam bride capture, and Native American cases); Katzenelson, Conley & Martin, Non-U.S. Citizen Defendants in the Federal Court System, 8 Federal Sentencing Rptr. 259 (1996); Matsumoto, A Place for Consideration of Culture in the American Criminal Justice System: Japanese Law and the Kimura Case, 4 D.C.L. J. Int’l L. & Prac. 507 (Fall 1995) (discusses history of Parent-Child Suicide, its treatment in Japanese courts, and while rejecting culture as a substantive defense, proposes amendment of the U.S. Sentencing Guidelines to permit consideration of culture in sentencing); Note, Removing The Blinders in Federal Sentencing: Cultural Difference as a Proper Departure Ground,” 78 Chi.-Kent. L. Rev.. 445 (2003) (good survey of recent caselaw seeking downward departure based on culture-related grounds; published before the Patriot Act restrictions); Renteln, A Justification of the Cultural Defense as Partial Excuse, 2 S. Cal. Rev. of Law & Women’s Studies 437, 439 (1993); Schein, Cultural Issues in Sentencing, in J. Connell & R. Valladares, eds., Cultural Issues In Criminal Defense 12-1 (Juris Publishing 2000); Sikora, Differing Cultures, Differing Culpabilities?: A Sensible Alternative: Using Cultural Circumstances as a Mitigating Factor in Sentencing, 62 Ohio St. Law J. 1695 (2001) (favors use of culture solely at sentencing as a mitigation factor, and contains a good analysis of pros and cons of the cultural defense).