Sentencing equality for deportable aliens: departures from the sentencing guidelines on the basis of alienage.

• Author: Bent, Jason

INTRODUCTION

Peter Bakeas, a thirty-three-year-old Greek citizen living in West Lynn, Massachusetts and working in an entry-level position at the First National Bank of Greece in Massachusetts, developed a cocaine habit he could not afford.(1) Mounting debt from his cocaine habit pressured him to find alternative means for obtaining income. Bakeas, using his position at First National Bank of Greece, began to embezzle money from the accounts of a distant relative and some family friends. When his scheme was discovered, he confessed and made arrangements to repay the money he had taken. Bakeas pled guilty to embezzlement by a bank officer, in violation of 18 U.S.C. [sections] 656.(2) It was his first offense. Normally, under the United States Sentencing Guidelines, a defendant convicted of this crime under these circumstances and with no criminal record would be sentenced to three years of probation, twelve months of which would be served in a community confinement center. A community confinement center is a minimum security facility that allows inmates a more normal life and more contact with the community than a typical prison. According to Federal Bureau of Prisons ("Bureau") policy, however, an alien like Bakeas would not have been placed in one of these community centers, but rather would have been placed in a medium security prison -- a decidedly more punitive environment. In Bakeas's case, Judge Gertner, the sentencing judge, was aware of the Bureau's policy and decided to depart from the statutorily prescribed sentence. Judge Gertner instead imposed a sentence of three years probation, with ten months of home confinement, in which Bakeas could leave his apartment only for work, religious observance, or medical care. In doing so, Judge Gertner imposed a sentence that was similar to what a non-alien defendant would have received for the same crime. Did Judge Gertner have the discretion under the Sentencing Guidelines to make this decision?

The Sentencing Reform Act of 1984 ("Act") established the United States Sentencing Commission ("Commission") in order to compose and administer the United States Sentencing Guidelines ("Guidelines"). The Guidelines are a complex punishment formula based on a number of factors relating to the crime and the criminal involved.(3) The Act represents an attempt by Congress to introduce a more uniform sentencing system for defendants convicted of federal crimes.(4) Congress, however, anticipated that despite the need to punish criminals in a proportional and just fashion, it would be impossible to predict all of the relevant factors and circumstances that attend each individual case.(5) No formula, no matter how complex, could always arrive at the proper punishment range for every case. Recognizing this, Congress expressly provided for departures from the prescribed sentence, to be exercised at the discretion of the district court judge.(6)

Departures from the Guidelines, however, must be relatively infrequent in order to attain the desired goals of a uniform system of punishment -- if departures were the rule, and not the exception, the Guidelines would fail to reduce sentencing disparities. Consequently, the discretion of sentencing judges to depart has been limited, to some extent, by Congress(7) and the Commission. A sentencing judge is expressly forbidden from considering factors, relating to the criminal or the crime itself, as a basis for a departure.(8) Others are expressly mentioned as potential bases for departure.(9) Still many other factors are not mentioned in the Guidelines -- either intentionally or because the drafters did not consider them.(10) One unmentioned factor that some courts have considered as a basis for departure is the defendant's ineligibility for prerelease confinement programs due to the defendant's status as a deportable alien. Although the Guidelines forbid the use of race and national origin as a basis for departure,(11) they do not mention the defendant's alienage, or the consequences of the defendant's status as an alien for confinement conditions.(12)

Under Federal Bureau of Prisons policy, deportable aliens are generally ineligible for lower-security confinement programs, such as halfway houses, which give the prisoner greater freedom and the ability to carry on a more normal life.(13) Presumably, the Bureau's policy is based on the belief that an alien who knows he or she will be deported upon release from prison will be more likely to attempt an escape than other inmates.(14) As a result of the Bureau's policy, deportable aliens often face objectively harsher confinement conditions than the average citizen defendant, all else being equal.(15) Some courts have recognized these harsher conditions of confinement and have, therefore, acknowledged alien status as a basis for a downward departure.(16) For example, in United States v. Smith,(17) the defendant, Renford George Smith, was a deportable alien convicted of unlawful possession of cocaine base with intent to distribute.(18) The district judge imposed the minimum sentence available in the sentencing range prescribed by the Sentencing Guidelines, given the relevant factors present in the case, but indicated that she would have liked to reduce the sentence even more.(19) Although Smith argued that the court should depart downward to reduce the sentence further, the judge declined to depart, stating: "I really don't see any basis for departure."(20) On appeal, Smith argued that the district judge improperly refused to consider that Smith would be subject to harsher conditions of confinement than an otherwise similarly situated American citizen who had been convicted of the same crime.[21] Smith pointed out that he would "almost certainly [be] ineligible for the benefits of 18 U.S.C. [sections] 3624(c)."(22) That provision requires the Bureau of Prisons,

to the extent practicable, [to] assure that a prisoner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last 10 per centum of the term ... under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community.(23) The D.C. Court of Appeals noted that the Bureau of Prisons regulations make it nearly impossible for a deportable alien to qualify for such favorable prerelease programs.(24) The court held "that a downward departure may be appropriate where the defendant's status as a deportable alien is likely to cause a fortuitous increase in the severity of his sentence."(25) Since the district judge's statement that she did not see any basis for departure could have been interpreted as indicating that the judge felt that she lacked authority to depart on such a basis, the court reversed and remanded for resentencing.(26)

Other federal courts have rejected this approach. These courts have stated that anticipation of harsher conditions of confinement, stemming solely from a

defendant's status as a deportable alien, may never serve as the basis for a downward departure.(27) For instance, in United States v. Restrepo,(28) the Second Circuit vacated a district court's imposition of a sentence that was based partly on a downward departure in anticipation of the alien defendant's ineligibility for halfway houses or other minimum security facilities. The Restrepo court reasoned that Congress gave the Bureau of Prisons discretion over the placement of inmates, and altering a sentence in anticipation of a harsh placement would amount to an encroachment on the Bureau's discretion.(29)

A 1996 U.S. Supreme Court decision, Koon v. United States, addressed departures from the Guidelines and held that appellate courts could not categorically proscribe a factor as the basis of a departure unless that factor was explicitly forbidden from consideration by the Guidelines.(30) Although the tension between the Supreme Court's statement in Koon and the cases rejecting departures on the basis of alienage is apparent, the Koon case has failed to resolve the issue. Although several federal courts have read Koon as implicitly overruling Restrepo,(31) others have continued to follow Restrepo and have refused to depart on the basis of alienage.(32)

This Note argues that district court judges should not be categorically prohibited from departing on the basis of alienage. Instead, they should have discretion to depart downward from a prescribed sentence on the basis of a defendant's status as a deportable alien, when that status results in a "fortuitous" increase in the severity of the sentence. Part I of this Note argues that departures on the basis of alienage in anticipation of harsh conditions of confinement are consistent with Congress's charge to the Commission, Congress's intent in enacting section 3624, and with the Guidelines themselves. Part II argues that the Supreme Court's decision in Koon and a recent amendment to the Guidelines prohibit categorical rejections of bases for departure that are not specifically forbidden by the Guidelines, and that the Supreme Court and the Commission would, therefore, allow such departures in some cases. Part III of this Note argues that equality in sentencing and effective use of judicial discretion mandate that appellate judges defer to the discretion of district judges who depart downward on the basis of alienage in appropriate cases. Specifically, Part III concludes that aliens and citizens have substantially equal rights under criminal law, and that district judges should therefore be allowed to depart on the basis of a defendant's status as a deportable alien when that status adversely affects the defendant's conditions of confinement.

1. THE PRE-KOON ANALYSIS: ALLOWING DEPARTURES ON THE BASIS OF ALIENAGE IN ANTICIPATION OF HARSH CONFINEMENT CONDITIONS

   This Part argues that, even absent the Supreme Court's pronouncement in Koon, the Guidelines should be interpreted to permit a downward...