Texas Criminal Lawyer Blog

Last week, law enforcement conducted the biggest immigration raid in Midland County, Texas's history. Almost 40 people were taken into custody after a raid on an apartment complex construction site in Odessa. Eighty officers from different agencies were involved, including Immigration and Customs Enforcement (ICE).

Workplace raids have declined 70% since the end of the Bush administration, but are still, obviously, taking place. They are part of President Obama's ongoing efforts to show his dedication to enforcement and pave the way for comprehensive immigration reform. However, raids like this are more likely to make border security advocates dig in their heels. Why endorse a path to citizenship for illegal immigrants when law enforcement does such a fine job finding and deporting them?

At first glance, it's amazing how the landscape has changed since just 2007, when a comprehensive immigration bill seemed likely to pass. Even more amazing is how much has changed since 1986, when amnesty was the conservative position -- or a conservative's position. President Reagan signed the 1986 Immigration Reform and Control Act, granting amnesty to three million illegal immigrants. Why was he willing to legalize their status then, when politicians to his left are afraid to do so today? The answer lies in the details. If you look closer, you discover that the IRCA was tough on immigration as a whole, and immigration laws have grown harsher over the years.

While the IRCA granted amnesty to illegal immigrants, it also lowered the legal standard for finding an employer guilty of hiring illegal labor. It also introduced penalties designed to discourage employers from hiring illegal immigrants. However, the penalties had little effect, and illegal immigrants in the United States rose from three million to 12 million in the early 2000s. Other "tough on immigration laws" followed, especially after September 11, 2001. These included the 1996 Illegal Immigration Reform and Responsibility Act, which added civil penalties for documents fraud, and the 2005 REAL ID Act, which required states to meet certain security standards before issuing drivers licenses and identification cards.

In late 2005, the House of Representatives passed one of the most punitive immigration bills yet, classifying illegal status as a felony. Why 2005? It might have been a combination of lingering fear after 9-11 and a growing awareness that illegal immigrants were no longer staying in border states like Texas, Arizona, and California. Communities across the country experienced an influx of newcomers, and many did not like it. Meanwhile, the Senate tried to pass a Comprehensive Immigration Reform Act in 2006 and 2007 that provided a "path to citizenship" for illegal immigrants who were otherwise law abiding. It had the backing of President Bush and many Senators, but failed to even reach the Senate floor for a vote. Instead, Congress settled for passing border security laws, such as the Secure Fence Act of 2006, creating the border fence and greater patrol force that we know today.

This recent article discusses a push by conservatives to change criminal sentencing guidelines. The guidelines in question apply only to the state of Arizona, but this issue involves Texas and every other state in the union. Conservatives are realizing that mandatory sentences, modeled after those of the Federal Sentencing Guidelines, often lead to harsh, unfair, and absurd results.

For those unfamiliar with the Federal Sentencing Guidelines, here is a refresher. Up through the 1970s, criminal sentences were determined by judges and reviewed by parole boards, based on individual circumstances. But criticism of uneven sentencing and rising crime in the late 1970s paved the way for the United States Sentencing Commission and the Comprehensive Crime Control Act of 1984. The Commission created a Sentencing Guidelines that dictated the length of a sentence by the type of crime and the defendant's criminal history. Suddenly judges had to put aside their wisdom and experience to issue a sentence already set in stone. Defendants without a strong federal criminal defense attorney had little hope of evading a harsh sentence. United States v. Booker (2005) changed the rules so that the Guidelines were advisory, not mandatory, but they still hold great influence even today.

While the federal guidelines were being developed, states such as Arizona and Texas rushed to create their own sentencing guidelines. Like the federal version, the state guidelines often looked at the type of offense and the defendant's history. The state sentencing guidelines included offenses not listed in the Federal Sentencing Guidelines. And soon, like federal sentencing, state criminal sentences began to produce harsh, unfair, and absurd results.

Much has been made of the disparity in federal drug sentences. Until 2010, there was a 100:1 disparity in the sentences for possession of crack and powder cocaine. Crack cocaine was more "powerful," it was reasoned, so its users deserved more jail time. Never mind that the difference in power was the source of continuous debate. While it's fortunate that the 2010 Fair Sentencing Act reduced the disparity, other absurdities remain. Likewise, the article notes that an Arizona woman spent nearly two years in prison for her first DUI because she had previously been convicted of marijuana possession. Arizona imposes mandatory sentences for nonviolent crimes such as drug possession and DUIs. Its guidelines are especially harsh on repeat offenders can even if their past crimes were nonviolent.

To their credit, conservatives who support tough-on-crime measures think that the Arizona sentencing guidelines need to be reformed. Other states, such as Texas, have begun to reform their procedures as well. In 2007, Texas started a program that created an alternative to prison time by allowing offenders to substitute probation plus time in a substance abuse program. The Texas Public Policy Foundation has a Right on Crime project that is currently reviewing mandatory sentences.

Recently, the Texas Court of Criminal Appeals denied a request for additional DNA testing from Ruben Gutierrez, a death row inmate from Brownsville. He was convicted in 1999 for stabbing a trailer park manager to death 14 times with a screwdriver. Gutierrez denies that he was responsible. He claims that there was no evidence that he was ever at the scene of the crime and also that he was coerced into making several statements in violation of his Fourteenth Amendment rights.

The question that comes to mind is "Who was that man's attorney?" The article notes that Gutierrez requested a court-appointed attorney to file a motion for more DNA evidence. Did he have one to represent him at trial, but could not afford one for the appeals? Was his attorney ineffective for failing to request DNA testing at the point in the proceedings when it would have made the greatest impact? It's unfortunate, because a savvy state or federal criminal defense attorney would have known when seek DNA evidence. He also would have advised Gutierrez on his rights during a police interrogation.

Far from "muddying the waters," DNA evidence could reveal Gutierrez's role in the crime, if any. DNA evidence was first tested for criminal cases in the 1980s, and has been critical to trial and post-conviction exoneration ever since. It has a remarkably high success rate -- a 350 million to one chance of an incorrect match. Therefore, it has proven conclusively time and again that a criminal defendant was not at the scene of the crime, resulting in the defendant's release.

DNA testing is not just for death row cases. It can be used to exonerate someone facing a life sentence for drug trafficking or another serious state or federal crime. It's just a matter of whether someone was at the scene of the crime. A strand of hair on the floor, saliva on a toothpick, sweat on a mask... all of these can serve as DNA evidence to convict or exonerate. Though the testing process can take several weeks, it is worth it if someone wrongly convicted of a crime goes free. It is especially worth it in death row cases: 17 death row inmates have been released due to DNA evidence since 1989.

The Court of Criminal Appeals would lose little by granting Gutierrez the right to conduct additional DNA testing. Better they find out now that Gutierrez is definitely guilty than learn of his innocence after he has been executed. Right now, Gutierrez's next step is unknown. It may be too late to save him from death row. But for another defendant out there with a seasoned criminal attorney, DNA evidence may provide a second chance.

President Obama made an early 2012 campaign stop in El Paso to make the case for comprehensive immigration reform. The time was right, he claimed, because he kept his promise and secured the U.S.-Mexico border. This includes doubling the number of Border Patrol agents since 2004, nearly completing the border fence, tripling the number of intelligence analysts, and setting unmanned aerial vehicles on the border. His policies have resulted in more drugs, currency, and weapons being seized than ever before.

The president's words deserve a grain of salt, since this blog has previously discussed the holes in border security. Even so, border security advocates' embrace of more and bigger barriers is baffling on several levels. Their most often-cited reason is to stop illegal immigrants - the regular economic kind, and the could-be-a-terrorist kind - from entering the country. Yet illegal crossings have actually declined over the years, to less than half of what they were in 2005. To listen to some, you would think that they had doubled. As for terrorists illegally crossing the U.S.-Mexico border, no conclusive evidence has ever been established.

There are some real border problems. Drug smugglers still find their way into the U.S. Conversely, Guns from the U.S. flow into Mexico. Both have led to violence and the destruction of lives. Yet you don't hear border security advocates discuss that very much. In fact, this beefed-up border security has become part of the problem. When the Border Patrol is not looking the other way, its members may be overzealously stopping and searching vehicles belonging to otherwise law-abiding Americans. These people then must find a criminal defense attorney to help fight the federal crimes they have been charged with.

Why shouldn't these practices matter to border security advocates, who claim to care about individual rights and the American way of life? In fact, Citizens are being harmed by these practices. Their rights are being ignored at so-called border stops such as Sierra Blanca, Texas. People are spending time in jail and are charged with felony drug possession for small amounts of drugs or marijuana as a result of border patrol agents and local law enforcement abusing their authority. This should be a big deal, but it's not.

Immigration is an important issue. But the worst fears of border security advocates do not seem to equal what is happening to American citizens every single day. Perhaps they will be satisfied by President Obama's security measures and finally turn their attention to abuses at the border. More likely, though, border security advocates will just demand more security, and the issue of Americans' rights at the border will continue to fall by the wayside.