Sound crazy? La Shawn Barber has this incredible story.
The case involves a drug dealer who was charged and convicted of a drug crime and the endangerment of a child (the dealer was using the child as a courier). Under the sentencing guidelines, the drug dealer (believe it or not) was going to be given probation. But one of teh conditions of probation is that you can't commit a crime or you go to jail. The trial judge figured that being in the country illegally was a crime and so disregarded the sentencing guidelines and threw the dealer in jail. Sounds sensible right? Well, not so fast:
Naturally, the drug-dealing illegal alien appealed. Among other things, he argued that his being an illegal alien was “not a substantial and compelling reason to deny him presumptive probation.”Mind boggling.
The appeals court agreed. Here’s the opinion. This is the golden nugget that will be quoted far and wide in mainstream media and in the blogosphere (emphasis in original):
“While Congress has criminalized the illegal entry into this country, it has not made the continued presence of an illegal alien in the United States a crime unless the illegal alien has previously been deported and has again entered this country illegally. 8 U.S.C. § 1326 (2000) makes it a felony for an alien who has been deported to thereafter reenter the United States or at anytime thereafter be found in the United States.”
In other words, the judge suspended logic — that illegal aliens obviously are in the country illegally — because Congress wasn’t explicit, and threw out the sentence.
Martinez also argued that it’s not the state court’s function to enforce federal immigration law. True, but as the appeals court pointed out, the district court wasn’t enforcing immigration law by recognizing that the drug-dealing thug was an illegal alien. I hope George Bush reads this part:
“The fact that our national leaders, for political, policy, or budgetary reasons, have chosen to ignore violations of our immigration laws does not prevent our courts from considering whether a defendant is engaging in an ongoing violation of law in determining that defendant’s amenability to probation. The sentencing court should not be compelled to impose a plan of probation which, by its very nature, cannot be successfully completed.”
The case goes back to the lower court for resentencing. Who knows what will happen after that. The prosecutors had accepted Martinez’s plea, so I don’t see them appealing the case to the Kansas Supreme Court.
Will Congress fix this? I wouldn't count on it.