SCOW took this case to address “whether a sentencing court may rely on a defendant’s illegal immigrant status as a factor in fashioning a sentence.” See here. In a 6-0 decision, the answer, at least on the facts of this case, is that a Wisconsin court may sentence a defendant more harshly because he is an “illegal alien.” The concurrence by Justice A.W. Bradley provides guidance to lower courts and defense attorneys about how to handle immigration status at sentencing.
Salas Gayton is an undocumented immigrant. He came to the United States about 13 years prior to sentencing in order to work. He had a drinking problem, sought help from Alcoholics Anonymous, and achieved sobriety for several years. He did not have a driver’s license, and he had been convicted of driving without one. Otherwise, he had no criminal record.
Salas Gayton fell off the wagon when his fiancée broke up with him. Driving with a .145 BAC, he entered I-94 the wrong way and ran into a car and killed its driver. He was convicted of OWI homicide and driving without a license causing death. At sentencing, the victim’s family presented a passionate allocution which, among other things, condemned “illegal immigrants.”
Long story short, the court sentenced Salas Gayton to the 15-year maximum term of initial incarceration for OWI homicide along 7 years of extended supervision, though he had no prior OWIs. The court imposed a concurrent 9-month sentence for operating without a license causing death. During sentencing, the court repeatedly stated that the fact that Salas Gayton is a “noncitizen,” an “illegal alien” and an “illegal” “goes to his character” or is “a minor character flaw.” The court never mentioned how alienage or “illegal alien” status related to the sentence imposed.
This did not trouble SCOW for three reasons. First, the circuit court stressed the dangers of drunk driving, whereas Salas Gayton’s “immigration status constituted no more than a ‘minor factor’ in the court’s sentencing determination.” Slip op. ¶31. (emphasis supplied). Second, Salas Gayton was convicted of causing death while driving without a license. “Because his unlawful entry related to an element of a crime for which he was convicted, it was not improper for the circuit court to consider his immigration status as an aspect of his character for sentencing purposes.” ¶32. Third, the many non-Wisconsin cases holding that a court may not consider immigration status at sentencing “do not absolutely foreclose consideration of unlawful conduct related to immigration.” ¶32.
There are an estimated 76,000 undocumented immigrants in Wisconsin. Studies show that they are sentenced far more harshly than citizens among all racial and ethnic groups. ¶54 n.5. If you are defending one of them, Justice A.W. Bradley’s concurrence is worth reading. Bear in mind these points:
First, SCOTUS has never explicitly addressed whether or how alienage or immigration status may be used at sentencing. However, it is clear that noncitizens–even those who are here unlawfully–have the right to due process under the 5th and 14th Amendments. Plyer v. Doe, 457 U.S. 202, 210 (1982). ¶51. And punishing a person based on his status is constitutionally prohibited. Robinson v. California, 370 U.S. 660, 665-667 (1962)(status of being addicted to narcotics). ¶60 n.8.
Second, case after case (outside Wisconsin) holds that sentencing a defendant more harshly because of his alien status violates the constitution. See e.g. Yemson v. U.S., 764 A.2d 816, 819 (D.C. 2001); U.S. v. Gomez, 797 F.2d 417, 419 (7th Cir. 1986); U.S. v. Leung, 40 F.3d 577, 586-87 (2d Cir. 1994). Ditto re sentencing a defendant more harshly because of his “illegal immigrant” status. See e.g. State v. Mendoza, 638 N.W.2d 480, 484 (Minn. Ct. App. 2002); Martinez v. State, 961 P.2d 143, 145 (Nec. 1998); State v. Zavala-Ramos, 840 P.2d 1314, 1316 (Or. Ct. App. 1992). ¶¶55-58.
Third, do not refer to your client as an “illegal alien” or an “illegal immigrant,” and object if a court does. These terms invoke pejorative stereotypes, and courts around the country (not to mention the Associated Press and the Library of Congress) are rejecting their use. ¶41 n.1.
Fourth, immigration law is very complicated. Just because a person is undocumented does not mean he is “illegal” or has engaged in criminal behavior. He may, for example, have been brought into the United States by adults. Sentencing courts (and immigrants themselves) often lack accurate and reliable information about immigration status. ¶¶63-68. This determination should be left to specialized federal courts created for this purpose.
Fifth, unlawful entry into the United States is a petty misdemeanor under 8 U.S.C. §1325(a). A court may consider this act as it would any other unlawful or uncharged conduct. However, it must state the linkage between the unlawful entry and the sentence imposed on the record. ¶¶73-76. Here, the majority opinion inferred that the circuit court’s comments about Salas Gayton’s “illegal alien” status related to the crime of driving without a license. It created a sentencing rationale that the circuit court never expressed. And that violated State v. Gallion, ¶77-89.
Attorney Matthew Pinix filed an excellent amicus brief on behalf of the ACLU, the National Immigrant Justice Center, Catholic Charities, and the UWLS Immigrant Justice Clinic. You will also find him quoted here in the ACLU’s press release about SCOW’s decision in this case.