No Probations for Illegal Aliens: The Problem with Blanket Law Enforcement Policies on Undocumented Immigrants

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair


In September 2006 Houston police officer Rodney Johnson was shot in the back of the head by an illegal immigrant the officer had just arrested following a routine traffic stop. And in March 2009 Houston police officer Rick Salter was shot in the face by an illegal immigrant during a narcotics raid. He remains in critical condition. Both of these shootings of law enforcement officers by illegal immigrants triggered intense criticism from Houston Mayor Bill White and Police Chief Harold Hurtt against federal immigration officials for their alleged failure to secure the nation’s southern borders and for failing to aggressively push for the removal of illegal immigrants in this state.


This immigration debate is a bitter affair. There seems to be rational middle ground to discuss the issue because it has been so politicized. For example, the debate was again inflamed earlier this year when Harris County District Attorney Pat Lykos announced that her office was considering creating a policy that would recommend denial of probation to any illegal immigrant arrested and convicted of a felony in Harris County. The proposed “no-probation” policy drew instant outrage from local Hispanic leaders, criminal defense attorneys, and prominent legal scholars who questioned its constitutionality.

On April 19, 2009, Homeland Security Secretary Janet Napolitano gave ammunition to those who argue that the “no-probation” policy would be unconstitutional when she said on CNN’s “State of the Union” Sunday morning talk show that illegally entering the United States is not per se a “crime.” Napolitano’s comment triggered yet another firestorm of controversy led by conservative bloggers and radio talk show hosts who claim the federal statute prohibiting illegal entry into the United States makes such an entry a “crime.”


The federal law, 8 U.S.C. § 1325, makes it a misdemeanor offense subject to fine or six-month imprisonment for anyone entering the United States illegally. Its sister statute, 8 U.S.C. § 1326, makes it a felony offense for anyone to reenter or attempt to reenter the U.S. after being removed or deported from this country.

The Homeland Security secretary seem to suggest, as have many legal scholars, that a violation of § 1325 is a “civil” and not a “criminal” offense.


The distinction between the two wrongs is critical in analyzing District Attorney Lykos’ proposed “no-probation” policy.

In Texas, an individual convicted of a crime, with a few exceptions for violent offenses, is eligible for probation if they are: 1) sentenced to a term of imprisonment of less than 10 years, and 2) they have never before been convicted of a felony in this Texas or any other state.


There is no state law prohibiting probation for illegal immigrants. Therefore, assuming that an undocumented immigrant has not been previously convicted of a felony and they are not found guilty of a violent felony expressly excluded from the probation statute, they are eligible for probation under state law.

There is, however, no question that person who has been convicted of illegally reentering the United States after a previous removal, which is a federal felony, could automatically be denied probation consideration because it is, standing alone, a serious felony offense.


The United States Supreme Court held nearly forty years ago that an individual has a protected due process “liberty interest” in probation. 4/ This means that once a state creates a statutory right to probation, it cannot be denied to an individual in any discriminatory manner. The Lykos’ blanket “no-probation” policy for first time illegal immigrants would indeed create serious constitutional challenges—especially if the federal courts upheld Secretary Napolitano’s position that illegal entry into the country is not a “crime.”


Lykos’ proposed “no-probation” policy would also run against the grain that electronic monitoring, home confinement, and probation for offenses committed by first-time illegal immigrants that have proven to be successful alternatives to incarceration while federal removal proceedings are underway.


In fact, U.S. Immigration and Customs Enforcement (ICE) operates a number of such successful intensive supervised release programs—including electronic monitoring, curfews and probation—for illegal immigrants during removal proceedings. ICE fact sheets show that these programs enjoy a 97 percent appearance rate at immigration hearings and a 95 percent at final order hearings. ICE figures also show that 94 percent of those allowed to remain in U.S. under electronic monitoring after being ordered deported leave the country when their appeals are finalized.


ICE utilizes probation and other intensive supervised release options because they are far more cost effective than detention. It costs $141 a day to keep an illegal immigrant detained in federal custody while it costs only $13 a day to maintain him/her in an electronic monitoring program. On an average of any given day, there are 2700 illegal immigrants under federal electronic monitoring because the ICE budget allows for 13,000 such releases each year.


There are approximately 170,000 inmates in the Texas prison system. It costs nearly $15,000 a year to house each one of those inmates. It takes in approximately 1500 new inmates each week. The Harris County jail system is currently overcrowded and facing a continuing civil rights investigation by the U.S. Justice Department. The county must farm out hundreds of inmates to the Louisiana prison system for housing at an exorbitant cost to taxpayers.


Lykos’ proposed “no-probation” policy would only aggravate these costly state and local problems. The vast majority of the millions of illegal immigrants in this country came here to be with family or to find economic opportunities. These are generally law-abiding, hard-working, tax-paying individuals. They are not violent individuals or drug dealers like the two illegal immigrants who shot officers Johnson and Salter.


But some first-time illegal immigrants do run afoul of the law. They get arrested for burglary, shop lifting, DWI, or domestic violence just as many U.S. citizens do on a fairly regular basis. Once they are identified as an illegal immigrant, ICE commences removal proceedings. These proceedings sometimes take months, even years to become final. Under the Lykos’ “no-probation” policy, such petty, non-violent offenders would sit in the Harris County Jail or the Texas prison system serving a prison sentence while the federal removal proceedings were underway. That would cost taxpayers millions of dollars.


And the Lykos policy would severely undermine the deterrent value of a probated state sentence if an illegal immigrant is removed from the country while on probation. A removed illegal immigrant-probationer would know that he/she faced not only federal prosecution and a certain prison under Section 1326 for reentry into this country but an additional stay in the Texas prison system as well for violating the conditions of his/her probation with the illegal reentry and failure to comply with the probation once removed. The prospect of two prison incarcerations stands as a powerful deterrent to those non-violent individual contemplating a second illegal reentry into this country.


The more logical method of preventing horrific crimes like the shootings of officers Johnson and Salter is for the State of Texas to identify all violent illegal immigrants in its jail and prison systems and notify ICE about them so removal proceedings can be commenced upon completion of their state adjudication. Of the 252 jails in the State of Texas, only 19 have access to an ICE database that allows a suspects’ immigration history to be electronically checked. Through April 2009, those 19 jails checked 37,000 arrested individuals and identified 8,844 individuals with fingerprints on file with ICE officials.


District Attorney Lykos would better serve the legitimate interests of “public safety” by pushing for all state’s jails to have access to the ICE and NCIC databases. These programs allow law enforcement agencies to immediately identify illegal immigrants with a criminal history at the intake level of the criminal justice system. Such an early identification system would give Lykos’ office an opportunity to separate the wheat from the chaff—the non-violent first time offenders from the repeat, violent ones. No violent or repeat offenders would be eligible for probation consideration. This same policy could be used in screening all defendants and would not run afoul of due process and equal protection protections.


The Texas Department of Criminal Justice has undertaken a recent effort to identify all illegal immigrants in its system. The department announced it was taking part in a pilot plan implemented by the Obama administration to screen inmates in the nation’s 1200 state and federal prisons and 3100 jails in an effort to identify violent illegal immigrants. The TDCJ is now relaying fingerprints of the approximately 1500 new inmates it admits each week to Homeland Security officials.

The Obama plan to identify those illegal immigrants who have committed serious crimes such as murder, rape, robbery, kidnapping and major drug offenses will not be cheap. Estimated cost to federal taxpayers will be nearly $200 million this year and that could increase fivefold by 2013.


Texas is the first state to sign up for participation in the pilot program. California is expected to follow soon.

“We’re accelerating [screening] because it works,” Napolitano was quoted as saying in a recent news release. “Our goal is looking at public-safety aspects of illegal immigration.”


“Public safety” should be primary objective of District Attorney Lykos—not political posturing. A blanket policy by the DA to deny probation to all first-time illegal immigrants is both short-sighted and constitutionally questionable. It will only exacerbate the problem.





1/ In re Bazan, 251 S.W.3d 39 (Tex.Sup.Ct. 2008).
2/ Perez v. State, 11 S.W.3d 218 (Tex.Crim.App. 2000).
3/ Loredo v. State, 47 S.W.3d 55 (Tex.App.-Houston [14th Dist.] 2001).
4/ Morrissey v. Brewer, 408 U.S. 471 (1972)


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair