CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Sunday, December 20, 2009

Keller on Prior Convictions in Illegal Re-Entry Cases

Doug Keller has posted Why the Prior Conviction Sentencing Enhancements in Illegal Re-Entry Cases are Unjust and Unjustified (and Unreasonable Too) on SSRN. Here is the abstract:

This article discusses an important sentencing issue that affects thousands of lives each year that has nevertheless received little scholarly attention: the harsh prior-conviction sentencing enhancements defendants can receive in illegal re-entry cases - and only in illegal re-entry cases. The Sentencing Commission created and then sculpted the enhancements through a perfunctory process that radically altered illegal re-entry sentencing, shifting the focus from the defendant’s current offense to the status of his worst prior conviction. Depending on the nature of the prior conviction, a defendant can see his base offense level of 8 swell by 4, 8, 12, or 16 levels. In concrete terms, that means a defendant can see his sentence increase by 1 to 8 years - costing taxpayers up to $200,000 - because of a single prior conviction that could have occurred years or even decades ago.

Indeed, a defendant who qualifies for the enhancement will often spend more time in federal prison for his prior conviction (under the guise of being punished for illegal re-entry) than he spent in prison originally for the prior conviction. No other federal crime is punished based primarily on what the defendant previously did. And the crimes that trigger the 16-level increase are not the worst of the worst, as simple assault (throwing a rock at a car), minor threats (“Give me $10 or I’ll key your car”), and petty property damage (causing $35 worth of damage to another’s property with a match) can trigger the 16-level increase. That means that a rock thrower can receive the same enhancement as a terrorist, child molester, murderer, or rapist. Despite the unusual nature of the enhancement, the Commission has never provided a justification for it, nor is one apparent. Moreover, the enhancement undercuts Congress’s goal of reducing sentencing disparity and mandate sentences that are disproportionate to the crime of illegal re-entry. This article argues that this regime must come to an end. While courts were previously powerless to do anything about the Commission’s indiscriminate decision making, that is no longer the case. Since the Supreme Court held that the Guidelines are not mandatory (fixing a constitutional defect), courts must now evaluate the reasonableness of the Guidelines themselves before imposing a sentence. Even a cursory examination of the prior-conviction enhancements shows that they are unreasonable and should not be followed, even in the typical case.

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