Enhancing Sentences for Past Crimes of Violence: The Unlikely Intersection of Illegal Reentry and Sex Crimes

By Pringle, Abby | Journal of Criminal Law and Criminology, Fall 2009 | Go to article overview

Enhancing Sentences for Past Crimes of Violence: The Unlikely Intersection of Illegal Reentry and Sex Crimes


Pringle, Abby, Journal of Criminal Law and Criminology


I. INTRODUCTION

Section 2L1.2 of the Federal Sentencing Guidelines Manual (the Guidelines) delineates a graduated sentencing scheme for the offense of unlawfully entering or remaining in the United States following a prior removal. (1) The scheme provides four levels of enhancements for defendants whose prior removal was upon conviction of a crime. (2) The severity of the enhancement is determined by the nature of the offense for which the defendant was removed, with the highest level reserved for the most culpable and dangerous offenses. One way the Guidelines make this distinction is by labeling an offense a "crime of violence," a term that is defined differently under section 2L1.2 than elsewhere in the Guidelines or the United States Code. (3) The United States Sentencing Commission has revised the section 2L1.2 definition of "crime of violence" several times to more accurately reflect the purposes of punishment in general and punishment of illegal reentry in particular. (4) Since 2001, that definition has laid out two paths by which a court may label an offense a crime of violence: (1) it may be one of a number of enumerated crimes considered per se crimes of violence, or (2) it may fall under a more general, catchall description of crimes that involve actual, attempted, or threatened physical force. (5)

The courts have not, however, been in accord as to whether and how certain crimes fit into either definition. The most recent question to split the circuits is what range of crimes constitutes "forcible sex offenses," one of the enumerated crimes of violence. (6) In 2008, the Sentencing Commission set forth amendments to the Guidelines that explicitly addressed a split among the appellate circuits as to whether a "forcible sex offense" requires that the use of physical force be an element of the offense. (7) The amendment clarified that, consistent with the evolution of state rape laws, "forcible sex offense" means any sexual contact that occurs against the will of the victim. (8)

This Comment examines the meaning of "forcible sex offense" under section 2L1.2 as part of a historical pattern and considers its implications going forward. Part II explores the crime of illegal reentry and the development of the accompanying sentencing regime. This Part also introduces the purposes of punishment and the Guidelines generally, and the purpose and development of section 2L1.2 in particular. Part III addresses the evolving definitions of "crime of violence" and "forcible sex offense," explaining the differences in interpretation that created the circuit split and the Commission's responses. Part IV briefly addresses the history of rape and sex offense law in the United States and considers the impact of that history on the current controversy. Finally, Part V discusses the intersection of sex offenses and immigration crimes in section 2L1.2 and the practical implications for each. This Comment suggests that the best way to synthesize and further the purposes of all of these competing aspects is to remove sex offenses from the "crime of violence" definition entirely and create a separate category of enhancement. Doing so harmonizes several purposes and concerns around this difficult area of law. The solution recognizes that sex offenders are dangerous and deserving of punishment and exclusion, but allows gradations among sex offenses to meet the stated purpose of assigning harsh punishments to only the most deserving offenders. The separation is also consistent with the movement toward understanding rape as a crime against individual autonomy rather than a crime of physical violence.

II. THE CRIME AND PUNISHMENT OF ILLEGAL REENTRY

The criminalization of immigration violations remains a relatively young area of law. (9) Regulation of immigration is traditionally a federal administrative function, whereas state judiciaries claim primary responsibility for the enforcement of criminal law. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Enhancing Sentences for Past Crimes of Violence: The Unlikely Intersection of Illegal Reentry and Sex Crimes
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.