Criminal Defense of Immigrants

Equal protection may be violated by a sentencing decision or system that inflicts especially harsh sentences on individuals convicted of offenses that are not rationally distinguishable, for purposes of the penalty imposed, from less harshly punished offenses.[79]  Counsel can argue that punishing a noncitizen convicted of an identical offense far more harshly, by denial of many non-custodial rehabilitative programs resulting in far longer prison sentences, violates these principles by in effect basing longer prison sentences on the defendant’s nationality.

                The Due Process clauses of the Constitution, incorporated in the Fourteenth Amendment and thus applicable to the states, guarantee fundamental fairness in criminal sentencing procedures.[80]  Counsel can argue that due process is violated by a sentence framework that systematically excludes noncitizens from rehabilitative benefits routinely extended to similarly situated U.S. citizen defendants.

[79] Compare Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942), with Marshall v. United States, 414 U.S. 417 (1974). 

[80] Townsend. v. Burke, 334 U.S. 736 (1948); Hicks v. Oklahoma, 447 U.S. 343 (1980).