Criminal Defense of Immigrants
§ 8.25 2. Long Sentence
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The prosecution also generally has an interest in imposing a lengthy, as opposed to a short, sentence for a given offense. This means that in proposing a safe haven, counsel should seek a disposition that includes a sentence as great as the sentence initially proposed by the prosecution. It may even be necessary to compensate the prosecution for altering the charge of conviction to a non-deportable offense by agreeing that the client serve an additional period of time in custody. Even though the client generally will be opposed to serving extra time in custody, it makes sense to agree to do so, where the increase in custody is moderate, because deportation can have permanent life-destroying effects, whereas the extra custody time will pass.
It is also possible to structure a sentence to require the client to serve the same, or even more time in custody, and still have the court officially impose a sentence shorter than that required to trigger a ground of deportation. For example, if it is necessary to obtain a sentence imposed of less than 365 days in order to avoid deportation for an aggravated felony, the court could accept the client’s waiver of six months credit for presentence time served, and impose a sentence of 364 days in custody, and the client would serve the same actual amount of time s/he would have served under an 18-month or even two-year sentence. Counsel can suggest to the prosecution that the actual time served is the proper way to assess the amount of punishment that is being inflicted, even though the official order to serve time in custody would be brought below one year.