Criminal Defense of Immigrants

(A)  In General.  Professor Amsterdam outlined counsel’s basic role in argument at sentence as follows:

Defense argument on sentence should always start from the premise of guilt, since the judge will start there, and it makes no sense to lose the judge at the outset.  The focus of the argument must be upon the defendant as a person: his or her good record, lack of violence, and the other factors that make the defendant nondangerous if released; the pressures of the moment that led the defendant to commit this crime and will not recur; the needs for the defendant in the community (to support his or her family) to earn money to make restitution to the complainant); and the greater rehabilitative potential of the favorable disposition counsel urges than of any harsher one.  References to extenuating circumstances and to the relative lack of injury or damage suffered by the complainant are sometimes in order.  If counsel argues for probation, it is critically important that counsel present a convincing and practicable proposal for the defendant’s rehabilitation in the community.[76]

These arguments can be specially tailored to the noncitizen’s particular situation. 

                For example, even a short period of incarceration may disable the defendant from later making restitution to the complainant if an immigration hold is placed and the defendant is deported prior to release from immigration custody, since the defendant is unlikely to be willing or able to make restitution if deported.  Similarly, if the defendant is deported, s/he will be unable to provide financial or emotional support to the family which remains here in the United States.  Resources for rehabilitation are also likely to be far greater in the United States.

                Defense counsel can use many of the arguments here that were used in plea discussions with the prosecution.  See § § 8.16(C)(3), 8.19(B),(C), 8.22, supra.

[76] 3 A. Amsterdam, Trial Manual for the Defense of Criminal Cases [467] (1989).