Criminal Defense of Immigrants


§ 10.25 2. Judicial Policy to Consider Collateral Impact of Sentence

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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.[81]  Counsel can argue that due process is violated by a sentence framework that systematically excludes noncitizens from rehabilitative benefits routinely extended to U.S. citizen defendants.


                In many jurisdictions, the law allows or requires the sentencing court to consider the collateral effects of sentence on the defendant and his or her family and other dependents.[82]  The implications of this policy include (a) defense counsel must research and argue these effects at the time of sentence; and (b) any adverse prosecution policies are unreasonable, if not illegal.  See § 10.26, infra.

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

[82] E.g., California Rules of Court, Rules 4.414(b)(5), (6) (sentencing court must take into account, in deciding between probation and prison, of facts relating to the defendant, including (5) “The likely effect of imprisonment on the defendant and his or her dependents; (6) The adverse collateral consequences on the defendant’s life resulting from the felony conviction . . . .”).