Another Brilliant Idea from Lykos and Company

 Posted on March 30, 2009 in Uncategorized

I was relaxing on the front porch of Bennett Manor with a glass of good single-malt when the telephone rang. It was my private line - the number I don't give out to anybody. Caller ID showed an unfamiliar overseas area code. I answered it.

-Hello?

Pssst. Mark.

-Mr. X? Where are you calling from?I'm here in town. I'm routing this call through Bulgaria so they can't listen in.

X, my confidential source in the District Attorney's Office, has been alittle paranoid since he showed up late (and, truth be told, a little stoned, albeit on technically legally prescribed medication) to Pat Lykos's coronation inJanuary, but this is going a little far even for him.

-Bulgaria?

Yes. They're listening.

-Okaayyyy. Hey, thanks for the scoop on the whale thing. I saw that Jim Leitner is backing off on that dumb idea now.

You're welcome. Never in a million years would I have guessed that there would be so many ADAs cheering on your criticisms of the administration.

-My pleasure. We're all human beings fighting arbitrary government power together, right?

Um, yeah, sure. Whatever. Listen. I've got something else for you.

-Tell me.

On Friday Jim Leitner told us that the plea papers are being rewritten so that defendants will have to swear whether they are in the country legally before pleading guilty.

-What if they don't swear?

No plea for them.

-What if they're not in the country legally?

No probation for "illegals".

-What if they falsely swear to be in the country legally?

Look, Bennett. Figure it out yourself. I hear footsteps. I've got to go. Click.

Hmm. No probation for undocumented immigrants. Equal Protection problem, maybe? The Fourteenth Amendment forbids a state denying equal protection of the law "to any person within its jurisdiction." Plyler v. Doe says that undocumented immigrants are within the jurisdiction. So could the Harris County policy of refusing probation to undocumented immigrants be unconstitutional under the U.S. Constitution? I'll leave that question for the law-lawyers to hash out.

Assuming that the policy passes constitutional scrutiny, is it a good idea?

Pat Lykos is putting the DA's Office in the position of policing immigration.

The usual argument by prosecutors (including those of the black-robedvariety) who don't want to give probation to undocumented immigrants isthat they are committing a federal crime by just remaining in thecountry, so that they couldn't possibly successfully complete probation(because they would be subject to revocation for a new law violationfrom day one). This is incorrect. Being in the country illegally isnot, by itself, a crime.

The Chronicle, shortly after election day, focused on undocumented immigrants getting probation and found 330 cases involving people admitting to jailers that they were in the country illegally, and then being sentenced to probation. "At least 44 of those cases involved defendants who later had their probation revoked and were sent to prison or who now have outstanding arrest warrants."

Is this an inordinate number? Is it representative of all undocumented immigrants, or only of those who self-identified in jail? And if undocumented immigrants are more likely to fail on probation than those in the country legally, is refusing to agree to probation for those who don't swear to have legal status an appropriate response?

Immigration and Customs Enforcement official John P. Torres said in a letter to the Chronicle following the Chronicle's "investigation into how illegal immigrants are cycling through local jails" that "ICE has worked aggressively to pursue cooperation with state and local officials that will facilitate targeting criminal aliens for removal."

District Attorney Pat Lykos's new policy may be more about immigration policy - about identifying undocumented immigrants and jailing them so that ICE can deport them - than about making the Harris County criminal justice system work better or more fairly.

I predict that this policy will be a big hit with the Republican Party's base of Scared White Voters. How's it going to play out down at the courthouse?

Here's how it might play out with a prosecutor and defense lawyer trying to reach a settlement:

At some point Pat Lykos is going to realize that among the scarce resources she has to manage as District Attorney are her employees' and the courts' trial time. TANSTAAFL. Every politically pandering policy (no matter how popular in the real world) that makes some cases more likely to go to trial also makes it necessary for prosecutors to cut corners in other cases.