Wednesday, September 15, 2010

Context is everything

My main criticism of Judge Wood's opinion is that it does not provide context for the comments the judge made.  As the recent incident with Shirley Sherrod showed (say that three times fast), what seem like racist comments in isolation can take on an entirely different meaning when considered in context. 

Take "you people."  It is easy to imagine circumstances where those two words are inappropriate, but it is also easy to imagine circumstances where they are perfectly appropriate.  Judge Wood's opinion gives us no context to evaluate which circumstances were present here.  But, as the government's brief notes, what the judge actually said was "you people aren't supposed to be here," and he said it immediately after a discussion of the illegal immigration status of both Figueroa and his wife.  That context overwhelmingly supports the interpretation that by "you people" Judge Randa just meant Mr. Figueroa and his wife -- nothing less, nothing more.  Although this was the government's position (and the government attorney was presumably in the courtroom when the words were uttered), Judge Wood doesn't even consider this explanation as a possibility.  Instead, her opinion says, "Figueroa understood ["you people" and "those people"] to refer to persons of Mexican origin, although it is possible that the district court was referring to illegal immigrants or immigrants more generally."  

You point out that nothing in the opinion states that Figueroa is an illegal immigrant, and you are correct.  But this is a problem with the opinion, not my argument.  It is just another example of Judge Wood failing to provide context.  It is actually pretty disturbing that it is impossible to figure out from the opinion whether Figueroa is an illegal or legal immigrant, because if he were a legal immigrant then Judge Randa's disquisition on illegal immigration would have been truly bizarre.  But, as the governement's brief makes clear, it was in fact the illegal-immigration status of Figueroa and his wife that was the catalyst for Judge Randa's comments on illegal immigration, and these comments were perfectly appropriate:

[W]hile it is impermissible to sentence a defendant on the basis of national origin, it is absolutely appropriate to consider whether a defendant has previously broken the law. As this Court once noted, the act of illegally entering the country “is no different than any other recent prior illegal act of any defendant being sentenced for any offense.” Gomez, 797 F.2d at 420. Thus, while the subject of illegal immigration “sometimes raises emotional issues, . . . the illegal act of an alien is entitled to no more deference than some other prior illegal act of a citizen also being sentenced for a drug violation.” Id.
Finally, you're correct that Figueroa challenged the procedure, not the reasonableness of his sentence.  But neither the majority opinion nor the concurrence explains how the procedure of the sentences was tainted if it wasn't tainted with ethnic or national origin bias (issues that the court refused to take up).  If the court had held that Judge Randa's comments exhibited an ethnic bias, that would satisfy me that they'd found an improper procedure.  But I don't think inflammatory, odd, or extraneous comments by a judge should be enough to undo an otherwise appropriate and reasonable sentence.


  1. Pacer would not let me view the government's brief. I'm impressed you found it. Were you able to get the transcript of the hearing? I assume that was filed with one of the briefs given that it is cited. Given that the brief doesn't provide the exact quote either, how are we to know that the context you infer from the government's brief is correct?

  2. It wasn't easy to find, but there is a pacer link on the 7th Circuit website.

    I could not find the transcript. In later digging I found that there was a longer quote in the defendant's reply brief:

    “In other words, you people aren't supposed to be here. Because it's against the -- what? It's against the law. And it's the law, and our respect for it, that separates us from countries
    like Mexico, and Venezuela, and Iran, and Pakistan. And all of those people. It's why people come here."

    I think this makes pretty clear that he was talking to Figueroa and his wife, making the point that they broke the law by being in the country, and that this demonstrates lack of respect for the law. As the government's brief noted, promoting respect for the law is one of the statutory purposes of sentencing. 18 U.S.C. § 3553(a)(2)(A). On a related point, perhaps it is this "promoting respect for the law" provision that gives judges the statutory hook for chewing out defendants at the sentencing hearing.

    (By the way, the reply brief says it is attaching the entire 15-page portion of the transcript as an appendix, but that appendix is not available on pacer as far as I can tell.)


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