Tennessee Legislature Set To Punish Illegal Aliens Harsher

The Tennessee Legislature passed a new sentencing bill in the last minutes of the legislative session. The proposed new law would establish a new enhancement factor for defendants who are aliens illegally or unlawfully in this country and who have previously been deported for a criminal offense. If the sentence cannot be agreed to by the district attorney and the defense attorney, the trial court will conduct a sentencing hearing to determine the manner and length of the sentence. One of the considerations is enhancements factors. The complete list of sentencing factors can be found here. The new law places an unfair burden on the judges of this state.

The Tennessean has reported  that similar types of laws have been declared unconstitutional. From a common sense perspective the law is a waste of taxpayer money solely in an attempt to make political capital at taxpayer expense. Here is a real life example. A person in this category once arrested would have a ICE hold on them. Meaning that once they got out of jail, they would be deported because they were once deported. Also, the Federal government could prosecute for illegal reentry. Illegal reentry has a maximum punishment up to 20 years.

Now, the Legislature wants to allow Tennessee judges to order the defendant to serve more time in Tennessee prisons before they are deported or prosecuted in the Federal courts. Guess who foots the bill ? Tennessee taxpayers. It is expensive to house inmates.. The bill's fiscal note was for $500,000.00. It can't possibly be this low of an amount.

The Tennessee Legislature passed a bill knowing it may be declared unconstitutional. Additional it costs Tennessee taxpayers. It seems it is okay to fight a gas tax to fix roads but it is fine to spend money to keep people in jail unnecessarily.

 

The bill awaits the Governor's signature.

Should Your Client Testify at a Sentencing Hearing ?

Being a criminal defense attorney requires you to use many types of advocacy. You have preliminary hearings , motion hearings , jury trials ,and sentencing hearings. Each area requires different skills of persuasion. Today , I want to discuss one aspect of  sentencing hearings.

Sometimes your client is found guilty after trial or agrees to a sentencing hearing for the judge to decide the sentence. A sentencing hearing is basically a mini-trial where the judge decides the manner of service meaning should your client get jail, probation , or some other sentence. The court also decides the length of service . The topic today is whether your client takes the stand.

The attorney and the client must make the decision on whether to testify. Bear in mind a old post on the two most important words your client must say at a sentencing hearing. You client has three choices:

  • Say nothing.
  • Testify and be subject to cross examination.
  • Make an allocution .

If your client says nothing , the court can't hear him say I am sorry and show he is remorseful. If he testifies , the client opens himself up from the rants of the prosecutor that are often rambling and borders on abuse. then, the judge may have some questions.

My suggestion is the allocution. A  allocution is simply a statement made to by the client to the court. No help from the defense attorney. No cross examination by the prosecutor. It needs to express remorse if there is someone hurt .It needs to deal with the issues that the court may have concerns about such as alcohol and drug use. remember it is your story to tell on why the court should not send you to jail.

 

Should Your Client Testify at a Sentencing Hearing ?

Being a criminal defense attorney requires you to use many types of advocacy. You have preliminary hearings , motion hearings , jury trials ,and sentencing hearings. Each area requires different skills of persuasion. Today , I want to discuss one aspect of  sentencing hearings.

Sometimes your client is found guilty after trial or agrees to a sentencing hearing for the judge to decide the sentence. A sentencing hearing is basically a mini-trial where the judge decides the manner of service meaning should your client get jail, probation , or some other sentence. The court also decides the length of service . The topic today is whether your client takes the stand.

The attorney and the client must make the decision on whether to testify. Bear in mind a old post on the two most important words your client must say at a sentencing hearing. You client has three choices:

  • Say nothing.
  • Testify and be subject to cross examination.
  • Make an allocution .

If your client says nothing , the court can't hear him say I am sorry and show he is remorseful. If he testifies , the client opens himself up from the rants of the prosecutor that are often rambling and borders on abuse. then, the judge may have some questions.

My suggestion is the allocution. A  allocution is simply a statement made to by the client to the court. No help from the defense attorney. No cross examination by the prosecutor. It needs to express remorse if there is someone hurt .It needs to deal with the issues that the court may have concerns about such as alcohol and drug use. remember it is your story to tell on why the court should not send you to jail.

 

Tips From "Making Your Case"

 A criminal defense attorney's work is not limited to jury trials.Most of the day to day work a criminal defense lawyer performs is trying to persuade a judge to embrace their legal position.From sentencing hearings , probation violation hearings , bond reduction hearings , and motions to suppress evidence , an attorney has to be able to make their case to the judge.

I have been rereading parts of Justice Antonin Scalia and Bryan Garner's book , Making Your Case The Art of Persuading Judges.There are three main points that bears mentioning for my fellow attorneys.

 

Judges can only be persuaded when three conditions are met:

(1)They must have a clear idea of what an attorney is asking them to do.

(2)They must be assured it is within the court's power to do it

(3)After hearing the reasons for doing what you are asking, and the reasons for doing other things or nothing at all, they must conclude that what you're asking is best--both in your case and in cases that follow.

When drafting a motion or planning your argument , these three rules should be answered in your preparation.If not, be prepared for the consequences.