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Enhanced Sentencing for Undocumented Felons

On July 1, 2017, a new law went into effect in Tennessee that could result in longer prison sentences for illegal aliens who are convicted of felonies. The law allows judges to consider immigration status as a sentence enhancement factor. Previously, judges could consider immigration status as a sentence enhancement factor only for felons who were under removal orders.

Will the Law Hold Up in Court?

Though the law has been on the books for only a few days, immigration activist groups started making plans to challenge its constitutionality last spring. Similar laws in other states have already been overturned. They think that the Tennessee law has two major vulnerabilities:

Due process objections - Opponents say that immigration status is a matter for the federal government, not state court judges. They assert that judges cannot really if a person is in the country illegally. That determination is ultimately made by an administrative law judge within the Executive Office for Immigration Review.

Equal protection objections - Critics say that the law will result in the targeting of certain nationalities.

Immigration activist groups also decry the increased cost to the state. The Tennessee General Assembly Fiscal Review Committee estimated that passage of the bill would result in an additional $505,500 incarceration costs. In making its estimate, however, the Committee noted that the number of felons affected will likely be very low.

Proponents of the law counter these objections by saying:

  • The law does not require judges to consider immigration status. Instead, it grants discretionary power to judges to consider it as a sentence enhancement factor.
  • State court judges already consider immigration status as it relates to flight risk when deciding whether to grant release on bail.
  • A sponsor of the bill creating the law, Senate Majority Leader Mark Norris, said he asked legislative staff and district attorneys to review it and they did not voice any objections.

Whatever the ultimate outcome, keep this important principle in mind: Every person accused of a crime has the right to a strong defense. If you or a loved one has been arrested, speak with an experienced criminal defense lawyer.