Christie Hedman, Executive Director
L. Daniel Fessler, President
Telephone: (206) 623-4321
Fax: (206) 623-5420
Web: www.defensenet.org
Washington Defender Association
110 Prefontaine Place S., Suite 610
Seattle, Washington 98104
To: Washington State Judges, Prosecutors & Criminal Defense Attorneys
From: Ann Benson, WDA’s Immigration Resource Attorney: [email protected]
Magda Baker, WDA’s Misdemeanor Resource Attorney: [email protected]
Date: October 14, 2010
Re: Misdemeanor Sentencing Practices & Immigration Issues - Revised
Issues related to imposition of misdemeanor sentences (e.g. 365 vs. 364 day sentences), and their
impact on noncitizen defendant’s are not new. However, there has been renewed controversy
regarding these issues following the August 27th, 2010, issuance of Opinion 10-30 by the Ethics
Advisory Committee. This memorandum attempts to provide information and analysis of relevant
issues in an effort to assist in making informed choices. The memorandum addresses the following
issues:
I.
The Widely-Used Practice of Routine Imposition of “Minimum Maximum”
Sentences (Whether 365 or 364 days) Is an Unacceptable Blanket Policy……………...…….1
II. Misdemeanor Sentences Can Trigger Severe Immigration Consequences; Crafting Sentences
to Avoid Them Does Not Undermine Congressional Intent…………………………………..3
III. The Recent U.S. Supreme Court Decision’s In Padilla v. Kentucky Held That
Immigration Consequences Are a Severe Penalty, Not a Collateral Consequence,
That Must Be Considered in the Resolution of the Criminal Proceedings…………………...6
IV. Washington State Caselaw Clearly Recognizes That Immigration Consequences
Are an Important Factor for the Court to Consider in Crafting a Sentence……………… 7
V. Consideration of Immigration Consequences at Sentencing Does Not Violate
the Supremacy Clause………………………………………………………………………...7
VI. Imposing A Sentence That Factors in Immigration Consequences to a Noncitizen Defendant
Does Not Violate Equal Protection: Equal Does Not Mean Identical ….…………………...8
I.
The Widely-Used Practice of Routine Imposition of “Minimum Maximum”
Sentences (Whether 365 or 364 days) is an Unacceptable Blanket Policy.
Although there are exceptions in individual cases, it has long been an entrenched boilerplate
practice in many Washington courts of limited jurisdiction for prosecutors to request, and courts to
impose (often without objection by defense counsel) a sentence of 365 days in a majority of gross
1
misdemeanor cases. While courts often suspend varying amounts of time (also often in boilerplate
fashion (e.g. 365/364)) in any given case, until the controversy regarding the immigration
consequences to noncitizen defendants, it was a widely accepted, if erroneous, practice that a 365 day
“minimum maximum” was the assumed starting point in most cases.
RCW 9A.020.021(2) permits a prosecutor to request, and a court to impose a period of time
between zero and 365 days for a gross misdemeanor offense. Washington caselaw mandates that
judges exercise individualized discretion in fashioning the actual sentence in any given case,
including the maximum time imposed.1 To make such a determination the law also makes clear that a
court should have access to a wide range of information about the defendant and must consider all
relevant factors during sentencing.2
Proportional Sentencing. An individualized sentencing determination as required by law
requires both consideration of the gravity of the offense as well as the particular circumstances posed
by the defendant. The long-established practice of routinely imposing 365 day sentences (or 364 days
in some courts) in most gross misdemeanor cases (regardless of time suspended) compromises this
requirement of individualized determination by jettisoning any meaningful effort to determine a
punishment that is proportional to the crime. For example, does a first-time offense of unlawfully
taking a $20 item of clothing from a retail store warrant imposition of a one year sentence, even if the
defendant fails to comply with conditions of probation? In such a case, why does the sentencing
discussion not start at a period that more appropriately reflects the gravity of the offense (e.g., 30 day)
as the maximum period of jail punishment? Or why would a defendant guilty of fourth degree assault
with several prior misdemeanors not warrant a maximum imposed sentence for her crime of 200 days
in jail rather than one year?
In most courts of limited jurisdictions exercising prosecutorial or judicial discretion to fashion
individualized sentences that start at some period of time less than 365 days remains an exception,
rather than the rule. The common practice of starting the maximum period of imposed sentence at 365
days in most/all cases, regardless of the offense and regardless of a defendant’s particular
1
See State v. Cunningham, 96 Wn. 2d 31, 34-35, 633 P.2d 886 (1981); State v. Harris, 10 Wn. App. 509, 513,
518 P.2d 237 (1974) (sentencing judge has an “obligation to make the punishment fit the man rather than the
crime”); Pennsylvania Ex Rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 82 L.Ed. 43 (1937) (“For the
determination of sentences, justice generally requires consideration of more than the particular acts by which
the crime was committed and that there be taken into account the circumstances of the offense together with the
character and propensities of the offender”); Wisconsin v. Mitchell, 508 U.S. 476, 485, 113 S.Ct. 2194, 124
L.Ed. 2d 436 (1993) (“[t]raditionally, sentencing judges have considered a wide variety of factors in addition to
evidence bearing on guilt in determining what sentence to impose on a convicted defendant”); U.S. v. Kwan,
407 F.3d 1005 (9th Cir. 2005) (defense counsel was ineffective for failing to inform trial court of correct
immigration consequences of sentence because he deprived the court of information necessary to the exercise of
discretion); U.S. v. Lopez-Gonzalez, 688 F.2d 1275, 1277 (9th Cir. 1982) (sentencing judge must exercise
discretion and consider factors specific to defendant before sentencing her).
2
Harris, 10 Wn.App. at 512-13 (sentencing judge must consider all relevant information and “make the
punishment fit the man rather than the crime” based on “the fullest information possible concerning the
defendant's life and characteristics”); State v. Russell, 31 Wn. App. 646, 648, 644 P.2d 704 (1982) (sentencing
judge must possess the fullest information possible concerning the defendant’s past life and personal
characteristics.); State v. Balkin, 48 Wn.App. 1, 4, 737 P.2d 1035 (1987). (in determining the proper sentence, a
trial court is vested with broad discretion and "'can make whatever investigation [it] deems necessary or
desirable); State v. McGill, 112 Wn. App. 95, 47 P.3d 173 (2002) (judge who expressed dismay because he
believed he could not impose exceptional felony sentence below standard range based on disproportional nature
of standard range for drug related felonies failed to exercise discretion); Quintero-Morelos, 133 Wn.App. at 600
(taking interaction between state court sentence and federal law into account is part of “traditional sentencing
discretionary authority”); U.S. v. Lopez-Gonzalez, 688 F.2d 1275, 1277 (9th Cir. 1982) (“The exercise of
sound discretion requires consideration of all the circumstances of the crime… There is a strong public interest
in the imposition of a sentence based upon an accurate evaluation of the particular offender and designed to aid
in his personal rehabilitation”).
2
circumstances is itself a an unacceptable “blanket” sentencing policy contrary to EAC Opinion 10-30
and Washington caselaw.3 While such a practice may allow for more expeditious and seemingly
“uniform” sentencing practices, it does not comport with the law.
Additionally, burdening the majority of misdemeanor defendants with a one year sentence,
regardless of their offense or their circumstances is impermissible. While the legislature established a
one year period of time as the maximum jail sentence that could be imposed for gross misdemeanor
offenses, imposition of this maximum period is a significant burden on a defendant, even if such
period of time is never served. It should be the exception, not the rule. While the majority of
misdemeanor defendants never come close to serving the maximum period of time imposed by the
court, having a one year sentence hanging over them is a significant burden which is not warranted in
all, or even most, cases.
II.
Misdemeanor Sentences Can Trigger Severe Immigration Consequences; Crafting
Sentences to Avoid Them Does Not Undermine Congressional Intent.
Noncitizens are always subject to the possibility of deportation if they violate immigration laws,
regardless of whether they have lawful status or are undocumented, and regardless of how long they
have resided in the U.S. or other have other equities such as family and employment. Criminal
convictions are one of the clearest ways to ensure violations of immigration law that will result in a
noncitizen’s deportation.4 However, several key crime-related immigration provisions are only
triggered where a particular sentence is imposed upon the conviction.
A. Sentences as Defined Under Immigration Law
The immigration statute has its own definition of what will constitute a sentence for immigration
law purposes. That definition, at 8 U.S.C. 1101(10(48(B), states:
An reference to a term of imprisonment or a sentence with respect to an offense is deemed to
include the period of incarceration or confinement ordered by a court of law regardless of any
suspension of the imposition or execution of that imprisonment or sentence in whole or in part.
(emphasis added).
Consequently, a sentence imposed of 365 will constitute a sentence of 365 days under immigration
law, regardless of the period of time suspended by the court, e.g. a 365 day sentence with 364 days
will constitute a 365 day sentence under immigration law.5
Numerous crime-related consequences under immigration law, including deportation, are only
triggered when a specific sentence is imposed by the criminal court. This memorandum will focus
3
CJC 1, 2(A) and 3(A)(5).
The immigration statute provides three general categories of deportation for crime-related activity: the
grounds of inadmissibility at 8 U.S.C. 1182(2), the grounds of deportation at 8 U.S.C. 1227(a)(2), and the
aggravated felony definition at 8 U.S.C. 1101(a)(43). Numerous other provisions in the immigration statute,
provide for immigration consequences of criminal conviction and criminal conduct, namely, denial of many
types of immigration benefits such as asylum, permanent resident status and citizenship. See 8 U.S.C.
1158(b)(2)(B), 1255(a) and 1427(e).
5
Note that deferred sentences issued pursuant to RCW 35.20.255, 3.50.340, 3.66.069 will NOT constitute a
sentence for immigration purposes (provided no jail time is specified in the deferral documents) since, pursuant
to the statute, the Court is deferring imposition and execution of any particular sentence (contingent upon
defendant’s compliance with imposed conditions).
4
3
on the two most relevant immigration law provisions: 1. The “Aggravated Felony” definition6; and,
2. The “Petty Offense Exception”.7
B. Classification of Misdemeanor Offenses as Aggravated Felonies
1. Severe Consequences of Aggravated Felony Classification
Imposition of 365 days in certain Washington State misdemeanor offenses (e.g. theft 3rd, PSP 3rd
and assault 4th) will classify them as “aggravated felonies” under immigration law where a sentence
of 365 days is imposed, regardless of time suspended.
The immigration statute provides a list of offenses that can be classified as “aggravated felonies”
under immigration law.8 Despite clear statutory language that indicates that the term is meant to apply
to “felony” offenses, as well as clear legislative history that Congress never intended misdemeanor
offenses (see infra) to be classified as aggravated felonies, circuit courts have extended its reach to
misdemeanor offenses that fall within the scope of its provisions.9
Numerous provisions of the aggravated felony definition require that a specific sentence be
imposed in order for the offense to be classified as an aggravated felony. Specifically, 8 U.S.C.
1101(a)(43)(G) designates as an aggravated felony “a theft offense (including receipt of stolen
property) or burglary offense for which the term of imprisonment [is] at least one year” and 8 U.S.C.
1101(a)(43)(F) which designates as an aggravated felony, “a crime of violence…for which the term
of imprisonment [is] at least one year.” Consequently, a noncitizen defendant convicted of theft under
RCW 9A.56.050 or an assault under 9A.36.041 will face deportation as aggravated felons where a
sentence of 365 days has been imposed, regardless of time suspended. Defendants receiving sentences
of 364 days or less (regardless of suspended time) will not find themselves classified as aggravated
felons.
Classifying a noncitizen’s conviction as an “aggravated felony” triggers the most severe
immigration penalties, including:
 Certain deportation, regardless of individual circumstances – 8 U.S.C. 1227(a)(2)(A)(iii),
1229b(a)(3), 1158(b)(2)(B)10;
 A permanent bar to ever returning lawfully to the U.S. – 8 U.S.C. 1182(a)(9)(ii);
 Triggering “expedited removal” procedures which permit administrative removal and
deny most noncitizens access to a hearing before immigration and other federal judges – 8
U.S.C. 1228;
 Denial of judicial discretion to immigration judges to consider granting a pardon from
removal to longtime lawful permanent residents (green card holders), regardless of how long
6
See 8 U.S.C. 1101(a)(43).
See 8 U.S.C. 1181(a)(2)(A).
8
See 8 U.S.C. 1101(a)(43) for a list of offenses that can be classified as aggravated felonies under immigration
law. While the original definition of “aggravated felony” was first added to the immigration statute with the
Anti-Drug Abuse Act of 1988 and included on three offenses (murder, drug trafficking and firearms trafficking,
it has subsequently been expanded to include over 20 provisions that include hundreds of state and federal
offenses.
9
See, e.g., United States v. Gonzalez-Tamariz, 310 F.3d 1168 (9th Cir. 2002) (holding that a Nevada
misdemeanor battery conviction with a 365 day sentence imposed constituted an aggravated felony under 8
U.S.C. 1101(a)(43)(F)).
10
Certain noncitizens are permitted to file claims under the Convention Against Torture (CAT) that, if granted,
would preclude their removal. CAT claims are rarely granted as they require a respondent to meet a high
burden or proof by showing that it is “more likely than not” that they would be tortured by government officials
if removed.
7
4
the person has been in this country, how long ago or how minor her/his offense was, and the
impact of deportation to the person or her/his family – 8 U.S.C. 1229b(a)(3);
 Mandatory detention without bond for the duration of any removal proceedings,
including appeals – 8 U.S.C. 1226(c).
 Severely enhanced sentencing penalties for an illegal reentry conviction under 8 U.S.C.
1326 – USSG 2L.1.
2. Unintended Consequences: Legislative History Shows That Congress
Never Intended Misdemeanors to Be Classified as Aggravated
Felonies.
In 1996, Congress reduced the minimum prison sentence threshold for certain offenses to be
deemed aggravated felonies from “at least five years” to “at least one year.”11 There is relevant and
illuminating legislative history establishing that when, in so doing Congress never intended the
amended definition to reach misdemeanor offenses.
The 1996 amendments to the aggravated felony definition originated in section 161 of Senate bill
S. 1664.12 The Senate Report on S. 1664 succinctly stated: “Because of the expanded definition of
‘aggravated felony’ provided by sec. 161 of the bill, aliens who have been convicted of most felonies,
if sentenced to at least one year in prison, will be ineligible” for relief barred by conviction of an
aggravated felony.13 This language demonstrates that the Senate was concerned only with the range of
sentences that would make a felony conviction an “aggravated felony.” There is no suggestion that
crimes classified as misdemeanors would be transformed into “aggravated felonies” merely because
of the sentence imposed.
The Senate floor debate and comments by the major proponents of the criminal alien provisions in
the 1996 legislation (IRRIRA) provide further evidence that Congress intended that the expanded
aggravated felony categories be limited to felony convictions. When discussing the types of crimes at
issue, Senator Spencer Abraham, the architect of these provisions, and Senator William Roth, another
lead proponent, made several references to the seriousness of the crimes targeted, using terminology
such as “felonious acts,” “convicted felons,” and “serious felonies,” in addition to “aggravated
felonies” and “aggravated felons.”14
This legislative history of the IIRIRA aggravated felony provisions conforms with the history of
Congress’ use of the aggravated felony term prior to 1996. This history shows that Congress has over
the years consistently considered or assumed aggravated felonies to be felony offenses.15
Amendments to clarify the reach of the aggravated felony definition to felony offenses have been a
part of the numerous comprehensive immigration reform (CIR) proposals in recent years. However,
Congressional efforts to pass CIR have, to date, been unsuccessful.
C. Misdemeanor Offenses and the “Petty Offense” Exception
11
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, §
321(a)(3). (IIRIRA).
12
See S. 1664, 104th Cong., 2d Sess. § 161 (1996); see also H.R. Conf. Rep. No. 104-828, 104th Cong., 2d Sess.
223 (1996)(House recedes to Senate amendment section 161).
13
S. Rep. No. 104-249, 104th Cong., 2d Sess. 17 (1996)(emphasis added).
14
142 Cong. Rec. S. 4598-4600 (May 2, 1996).
15
For additional references and details to the legislative history on this issue please contact WDA’s
Immigration Resource Atttorney Ann Benson at [email protected].
5
The immigration statute contains crime-related “grounds of inadmissibility” that, if triggered will
bar noncitizens from lawful admission to the U.S., preclude them from obtaining lawful immigration
status (e.g. a greencard), and will render them ineligible to apply for U.S. citizenship.16
One of these inadmissibility grounds is triggered when a noncitizen obtains a conviction for a
“crime involving moral turpitude” (CIMT). However, the statute contains an explicit exception for a
single CIMT offense if the noncitizen can establish that: 1. The maximum possible sentence for the
crime was not more than one year; and, 2. The actual sentence imposed (regardless of time
suspended) was not more than six months (180 days).
Since all Washington gross misdemeanor offenses will meet the first requirement, noncitizens
facing a single conviction for a CIMT offense will fall within this exception if the actual sentence,
regardless of time suspended is 180 days or less. Such an outcome will preserve a noncitizen
defendant’s ability to depart and lawfully re-enter the U.S. and remain eligible for discretionary
immigration benefits such as U.S. citizenship. As both the U.S. Supreme Court and Washington
State Courts have recognized, immigration consequences are relevant and critical factors a court must
consider when exercising discretion at sentencing.
III.
The Recent U.S. Supreme Court Decision’s in Padilla v. Kentucky17 Held That
Immigration Consequences Are a Severe Penalty, Not a Collateral Consequence,
That Must Be Considered in The Resolution of the Criminal Proceedings.
As discussed above, sentencing discretion involves considering factors specific to each defendant
and her circumstances. For many noncitizen defendants, no factor is more relevant to a non-citizen’s
circumstances than the possibility of deportation. As the U.S. Supreme Court has long-recognized,
"[t]o banish [a noncitizen] from home, family, and adopted country is punishment of the most drastic
kind whether done at the time when they were convicted or later."18
More recently, in its landmark decision in Padilla v. Kentucky19, the U.S. Supreme Court held that
immigration consequences are not collateral to the criminal proceedings but are a “particularly severe
penalty” facing noncitizen defendants.20 In so doing, the Court’s decision outlines the drastic changes
in immigration law now facing noncitizen defendants and concludes by stating:
These changes to our immigration law have dramatically raised the stakes of a noncitizen's
criminal conviction. The importance of accurate legal advice for noncitizens accused of
crimes has never been more important. These changes confirm our view that, as a matter of
federal law, deportation is an integral part-indeed, sometimes the most important part of the
penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.21
The Padilla Court went on to hold that addressing immigration consequences are squarely within
defense counsel’s Sixth Amendment duty to provide effective assistance and, as such, defense
counsel is required to provide affirmative, competent and meaningful advice regarding immigration
consequences during the course of representation. The Court highlighted that providing “informed
consideration” of immigration consequences in the resolution of the criminal proceedings is in the
State’s interest and specifically sanctioned crafting a sentence to avoid deportation was an acceptable
means of ensuring that justice is served.22
16
See 8 U.S.C. 1182(a)(2).
CITE
18
Lehmann v. Carson, 353 U.S. 685, 691, 77 S.Ct. 1022, 1 L.Ed. 1122 (1957) (J. Black concurring.)
19
130 S.Ct. 1473 (Mar. 31, 2010).
20
Padilla at 1481-82.
21
Padilla at 1480.
22
Id. at 1486.
17
6
Even prior to the Padilla decision, Federal Courts routinely factored immigration consequences
into the sentences they crafted.23 In the Ninth Circuit’s decision in Kwan, the Court found defense
counsel ineffective and permitted a defendant to withdraw his guilty plea where counsel failed to
investigate and advise the court of the immigration consequences of the sentence imposed.24 The
Kwan court noted that by depriving the sentencing court of an opportunity to exercise its discretion to
craft a sentence that would have avoided defendant’s deportation counsel had been ineffective.25
IV.
Washington State Caselaw Clearly Recognizes That Immigration Consequences Are
an Important Factor for the Court to Consider in Crafting a Sentence.
Even prior to Padilla, Washington courts recognize that it is appropriate for judges to consider
immigration consequences when imposing a sentence. The Washington Supreme Court held in State
v. Osman that a defendant’s immigration status is a legitimate and relevant factor that can help a trial
court determine an appropriate sentence.26
Additionally, in State v. Quintero-Morelos, the Court of Appeals (Div. III) expressly held that it is
relevant and appropriate for a sentencing court to consider imposition of a sentence of less than 365
days avoid having a conviction trigger deportation as aggravated felony. Mr. Quintero-Morelos had
been convicted of fourth degree assault and sentenced to 365 days (330 days suspended) and
immediately apprehended by ICE and charged with a removal as an aggravated felon. The Court
upheld the trial court’s one-day post-conviction sentence modification on the grounds that “the
amendment was necessary to correct defense counsel’s failure to provide information” regarding the
immigration consequences of a 365 day sentence.27 In so doing, the Court of Appeals noted that
“…federal law has the potential to influence the actual punishment visited upon a criminal defendant
in state court. State court judges often make decisions mindful of federal implications.”28
V.
Consideration of Immigration Consequences at Sentencing Does Not Violate the
Supremacy Clause
United States Constitution contains a Supremacy Clause that forbids a state from passing a
law that conflicts with federal law. US Const. Art. VI, Cl.2. The U.S. Supreme Court has made
clear that where state law does not actually conflict with federal immigration law and where it is an
area of law not traditionally occupied by federal law, state law will be respected.29 Sentencing a
defendant for a violation of a state criminal statute is unquestionably within the prevue of state law.
Congress also unquestionably has the power to regulate immigration laws, including the
designation of a period of incarceration as an element for a ground of deportation. However, in
regulating immigration law, Congress has never attempted to preempt the exercise of traditional state
23
See, e.g., United States v. Kwan, 407 F.3d 1005, 1017 (9th Cir. 2005) (had sentencing court been aware it
could mitigate immigration consequences by imposing a sentence of less than 365 days, “there is a reasonable
probability that the court would have imposed a sentence of less than one year...”). See also, United States v.
Farouil, 124 F.3d 838 (7th Cir. 1997); United States v. Mason, 966 F.2d 1488 (D.C. Cir. 1992); United States v.
Bautista, 258 F.3d 602 (7th Cir. 2001); United States v. Tejeda, 146 F.3d 84 (2d Cir. 1998).
24
Kwan, 407 F.3d 1017.
25
Kwan, 497 F.3d at 1018 (quoting U.S. v. Castro, 26 F.3d 557, 560 (5th Cir. 1994
26
State v. Osman, 157 Wn.2d 474, 139 P.3d 334 (2006) (Likelihood of defendant’s deportation for incest
convictions would render SSOSA treatment unworkable and consideration of immigration consequences did not
violate equal protection).
27
Quintero-Morelos at 598.
28
Quintero-Morelos, 133 Wn. App. at 600
29
De Canas v. Bica, 424 U.S. 351, 96 S.Ct. 933, 47 L.Ed. 2d 43 (1976).
7
sentencing authority by mandating that any criminal court (state or federal) must affirmatively craft a
defendant’s sentence to satisfy an element of a deportation ground, e.g. that a sentencing court is
required to impose a particular sentence (e.g. 365 days) upon a defendant in order to ensure that the
defendant will be subject to a particular ground of deportation.
In addition to the clear mandate from the U.S. Supreme Court in Padilla, Washington State Court
have also made clear that criminal sentencing discretion does not implicate the Supremacy Clause.
In Quintero-Morelos, the Court of Appeals affirmed that a Washington court does not violate the
Supremacy Clause of either constitution when it considers immigration consequences at sentencing:
We simply are not prepared to hold that a state sentencing judge exercising traditional
sentencing discretionary authority runs afoul of the Supremacy Clause by imposing a
sentence of one day less than a year to avoid the defendant's deportation by federal
authorities. The judge here is not circumventing federal law. He is simply acknowledging the
obvious; federal law has the potential to influence the actual punishment visited upon a
criminal defendant in state court.30
VI.
Imposing a Sentence That Factors in Immigration Consequences to a Noncitizen
Defendant Does Not Violate Equal Protection: Equal Does Not Mean Identical.
Both the Washington and United States constitutions mandate equal treatment of people who are
similarly situated. US Const citation; Washington Constitution Art. I, Section 12. Under these
constitutional provisions, people who are similarly situated “with respect to a legitimate purpose of
the law” must receive like treatment.31
In State v. Osman32, the Washington Supreme Court explicitly held that taking a non-citizen’s
immigration status into account at sentencing was both necessary and appropriate and does not violate
equal protection. After pleading guilty to several felony sex offenses, the court denied defendant’s
request for a SSOSA33 based on its understanding that the defendant would be deported before he
could receive treatment. The Washington Supreme Court held that considering the immigration
consequences in crafting the defendant’s sentence did not violate equal protection because, the Court
held, that there was “some basis in reality” for distinguishing between defendants who faced
deportation and those who did not.34
Equal Does Not Mean Identical. Importantly, the Osman Court held that “equal protection does
not require that the state treat all persons identically.” Osman, 157 Wn.2d at 484. The Court’s
distinction that “equal treatment” does not mean “identical treatment” is instructive to the issue at bar.
Consideration of the immigration consequences in fashioning a defendant’s sentence is not a violation
of equal protection; failure to do so is, rather, an abuse of discretion, particularly where it is premised
on a misguided rationale that erroneously implicates equal protection doctrine as a basis for refusing
to exercise the requisite discretion.
Equal protection in misdemeanor sentencing requires that the trial judge endeavor to fashion a just
punishment in light of the totality of circumstances of any particular case. The potential immigration
consequences to a noncitizen defendant are critically relevant factors for consideration by the court,
particularly in light of the Supreme Court’s Padilla decision.
30
Quintero-Morales, 133 Wn.App. at 600.
State v. Harner, 153 Wn.2d 228, 235, 103 P.3d 738 (2004) (“The right to equal protection guarantees that
persons similarly situated with respect to a legitimate purpose of the law receive like treatment”); City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (citing Plyler v.
Doe, 457 U.S. 202, 216 (1982));State v. Harner, 153 Wn.2d 228, 235 103 P.3d 738 (2004).
32
157 Wn.2d 474, 139 P.3d 334 (2006),
33
Special Sex Offender Sentencing Alternative.
34
Osman at 486-87.
31
8