Discretion?! They took our jobs!

February 21, 2010 5:08 PM

In the US, for the past thirty years, new laws have been stripping judges of any discretion whatsoever in ensuring sentencing and other consequences of criminal activity are fair. Enter Qing Wong Hu, a Chinese immigrant who arrived in the US when he was 5, and now faces deportation for a string of muggings he committed in New York City in 1996, when he was still a juvenile. This, despite his successfully turning his life around and becoming a hard working, productive member of society.
posted by wierdo (19 comments total)

This kind of problem isn't limited to the immigrant population, although of course the possibility of deportation is. The perverse part of this case (I've met lawyers who worked on it) is that almost everyone involved agrees that it makes no sense to deport this person to a country that he doesn't even clearly remember. But it doesn't matter.
posted by 1adam12 at 5:21 PM on February 21, 2010

Ok, but he still needs to be rehabilitatedpunished, you know?
posted by kenko at 5:23 PM on February 21, 2010

Aren't judges able to, you know, declare the guidelines unconstitutional? As they would any other illegitimate law?
posted by clarknova at 5:29 PM on February 21, 2010

How are the sentencing guidelines unconstitutional?
posted by ryanrs at 5:30 PM on February 21, 2010

It's a harsh law, it's perhaps misguided or counterproductive.

But it's not illegitimate (it was passed by an elected Congress and signed by an elected president) or unconstitutional (there's no apparent violation of due process or the ban on "cruel and unusual" punishment).

So a judge can't ignore that law without implicitly claiming to be himself above the law.

This kind of case is what the "safety valve" executive clemency was designed for.
posted by orthogonality at 5:33 PM on February 21, 2010 [1 favorite]

BTW, wierdo, great double entendre in the post title.
posted by orthogonality at 5:35 PM on February 21, 2010

This is a problem in Latin American communities when someone who entered when they where 2 or such gets in trouble and sent to El Salvador or something. It's a thorny issue on all sides and heavily politicized and just bad all around.
posted by The Whelk at 5:35 PM on February 21, 2010

I've seen a number of these cases where lawyers tell their clients that a guilty plea won't affect their immigration status. And sometimes, it doesn't. It comes up when the immigrant seeks to change their status to a USC, as here. This lends itself to an ineffective assistance of counsel claim, but too frequently, there's no one to help the immigrant make the case. There's no right to a public defender in deportation proceedings, as it's "not punishment." I wonder how many of these poor souls are detained, put on a plane, and no one outside their immediate family ever hears of them for want of the network and resources Qing Wong Hu has at his disposal. I wish him luck, but I wish even more for a reformed immigration system.
posted by the christopher hundreds at 5:36 PM on February 21, 2010 [2 favorites]

Bear in mind that this case is in immigration court, which is not at all what you think of when you think of the federal court system. It is an arm of the DOJ, and has pretty much no discretion to alter policy as set by the Attorney General and/or statute. They are not even Article I courts.

The sentencing guidelines are no longer mandatory for federal judges as of U.S. v. Booker.
posted by shadow vector at 5:43 PM on February 21, 2010

Derail: how is it not an Article I court? I mean, under the Constitution, everything governmental has to be article I or II or III. DOJ an executive agency, so it would be article I, yes?
posted by orthogonality at 5:51 PM on February 21, 2010

Same shit happens in Australia. This guy migrated to Australia at age 2. Small-time crim and junkie, deported to Serbia aged 36, didn't speak a word of Serbian.

This guy turned up in Australia aged 27 days! Nasty guy, deported to Sweden aged 33, doesn't speak a word of swedish.
posted by wilful at 5:55 PM on February 21, 2010

Orthogonality: it's a bit of a term of art. Article I courts are those that have statutory protections which give them independence from the executive branch (but which still hear disputes arising originally from administrative agencies). The immigration courts have no protections. The judges are hired and fired by the Attorney General. They are better thought of as bureaucrats who have a high level of expertise over the relevant law.
posted by shadow vector at 6:02 PM on February 21, 2010

So, ALJs?
posted by orthogonality at 8:09 PM on February 21, 2010

Immigration judges are ALJs, yes. But ALJs are not considered to be Article I judges. The various Article I courts (Tax Court, Court of Claims, a couple others) are each established by particular statutes which I believe explicitly describe them as courts created under Congress's Article I powers. Administrative law judgeships are created by individual agencies, typically under the authority granted in the Administrative Procedure Act. Though in the specific case of immigration courts, they are created under the authority of a different act, the Immigration and Nationality Act. As you say this latter stuff is also "Article I" in a literal sense, but that is the distinction being made by the term.
posted by shadow vector at 8:54 PM on February 21, 2010

And to try to bring it back on topic, the larger point is that there are many types of disputes which are cordoned off from "the courts" as most people think of them. So the answer to clarknova's question is no. It's basically inconceivable that the immigration court could ever rule that this law is unconstitutional. This fact is the result of choices made by Congress, and it is there that this process would have to be fixed.
posted by shadow vector at 8:59 PM on February 21, 2010

Judicial discretion can be either good or bad, though, depending on the context. Mandatory minimum drug sentences, for example, were enacted to reduce judicial discretion so that there would be uniformity in sentencing and less chance of abuse. If you stretch the argument, it could reduce the role of say, racism, in criminal sentencing. However, mandatory minimum sentences are rapidly falling out of favor in the United States because it turns out that judicial discretion is important for taking into account extraneous or special circumstances. Still, increasing judicial discretion does increase the ability of judges to perpetuate wide disparities in sentencing based on factors that aren't "special", like race.
posted by lunit at 6:55 AM on February 22, 2010

Right, this restraint on judicial discretion in sentencing was a reaction to numerous cases where judges were sentencing people who had committed similar crimes with similar histories to very dissimilar sentences. Many people pushing for the change toward more standardized sentences thought them to be more "fair," since they're imposed pursuant to a rubric that includes factors like previous crimes, history, etc. In my opinion, the guidelines are better than a bad judge (sentencing based on racial discrimination, whim, etc.) and much worse than what a good judge can do, taking into account the whole of a person's experience.
posted by craven_morhead at 10:00 AM on February 22, 2010

craven_morhead wrote: Right, this restraint on judicial discretion in sentencing was a reaction to numerous cases where judges were sentencing people who had committed similar crimes with similar histories to very dissimilar sentences.

Don't you really mean to say that different judges would sentence similarly situated defendants differently? If you were lucky enough to get Judge Schmoe, your federal possession charge from carrying a bag of weed in a national park would net you probation, while Judge Butt would give you 5 years.

Not that Judge Schmoe would give one guy probation and the next five years even though the crimes and criminal records were identical.

Personally, I think the sentencing guidelines are fine, as long as they are just that, guidelines. It can give judges a reference as to what sentence is considered appropriate for a given crime, yet allows them discretion to depart from the guidelines. (for a while, there was very little latitude in sentencing)

I'd like it if immigration courts worked the same way.

A system that does not provide appropriate individual results is by definition unfair.
posted by wierdo at 12:46 PM on February 22, 2010

Weirdo, that's a clearer way of saying what I meant, though I'm sure there were instances of a single judge handing out dissimilar sentences for the same crime as well.
posted by craven_morhead at 12:51 PM on February 22, 2010