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Criminal Punishment

What happens after conviction.

After your trial, the court will impose its sentence on you for the crime you committed. The Eight Amendment to the U.S. Constitution prohibits the court from subjecting you to “cruel and unusual punishment.” Among other things, this means that the punishment must fit the crime. But deciding what punishment is permissible in light of the Eighth

While it’s fairly obvious that imposing the death penalty on someone convicted of a first time burglary is almost certainly cruel and unusual punishment, the courts have allowed persons with multiple convictions for non-violent crimes such as writing bad checks to be sentenced to life in prison without parole as habitual offenders. In other cases, persons sentenced to lengthy prison terms for the possession of small amounts of marijuana have also been upheld when challenged on Eighth Amendment grounds. On the other hand, physical abuse, such as beatings and torture, have consistently been held to constitute the kind of cruel and unusual punishment prohibited by the Eighth Amendment. Read the rest of this entry »

Know your rights.

As we’ve already seen, in the United States we have two systems of courts. Similarly, we have two systems of criminal justice as well. At the federal level, you may be charged with a crime when you do something prohibited by a federal statute, and your trial on federal charges will be conducted in a federal district court. If you are found guilty and sentenced to serve a prison sentence, that sentence will be served in a federal prison.

If you commit a crime prohibited by state law, your trial will be conducted in a state criminal court, and any prison sentence imposed will be served in a state institution. In either case, however, your rights when accused of a crime are guaranteed by the U.S. Constitution. And if you are charged with a crime under state law and the state’s constitution grants criminal defendants greater rights than those contained in the federal Constitution, those safeguards will apply as well.

The most essential protections granted to individuals suspected of or accused of a crime are those contained in the Bill of Rights. And of these, the most important are those guaranteed by the Fifth Amendment.

As it has been interpreted by the U.S Supreme Court, the Fifth Amendment requires the government to take certain steps in order to ensure that you are not deprived of “life, liberty, or property, without due process of law.” If you are arrested, the police must inform you of your right to remain silent and to have the assistance of a lawyer, as well as the right to a court-appointed lawyer if you cannot afford to hire one on your own. In addition, you must be warned that anything you say may be used against you in court. This is the famous Miranda warning, named for the man whose appeal led to the Supreme Court’s decision that the failure of the police to provide notice of these rights was unconstitutional.

It’s not enough to tell you what your rights are, however. The police must give you the opportunity to exercise those rights, by letting you call a family member, friend, or an attorney. Holding an arrested suspect in isolation and refusing to let a lawyer or family member’s visit is also a violation of the suspect’s constitutional rights. And once you indicate that you want to speak to a lawyer, the police must halt all questioning unless a lawyer is present. However, if you change your mind and initiate further conversations with the police, any statements you make may be used by the government in prosecuting you.

You have a right to know the nature of the crime you have been charged with, and to appear before a judge within a reasonable period of time in order to enter your plea to the charges. If you are not released from jail on your own recognizance (your written promise to appear for trial) you have the right to have reasonable bail set.

How you can tell a misdemeanor from a felony.

Because some violations of the law pose a more serious threat to order and public safety than others, the law divides crimes into several different categories. A “petty offense,” which may also be called a “violation,” is the kind of crime that poses the least risk to society. Petty offenses include such acts as illegal parking, running a stop sign and other traffic offense, and other acts such as littering or burning leaves in violation of a state law or local ordinance.

In most cases, when you are charged with a petty offense, you will not be placed under arrest, but will instead be issued a citation, a kind of summons that orders you to either pay a fine or appear in court to defend yourself against the charge at a specified date. But if you are wanted for a more serious crime, or if you have previously ignored citations issued to you, you may be placed under arrest and taken into custody.

That’s because the law in most jurisdictions makes ignoring citations a misdemeanor, the next category of crimes. Acts classified as misdemeanors are considered to present a greater threat to the public safety than petty offenses. Some of the crimes typically classified as misdemeanors include assault (you threaten to punch your neighbor in the nose) and battery (you actually punch him). Shoplifting of inexpensive items, writing insufficient funds checks for small amounts, and committing acts of vandalism are other crimes usually considered misdemeanors.

While the penalty for committing a petty offense is generally only a fine, in most states the penalty for committing a misdemeanor may include a fine, a prison term of less than one year, or both. Depending on state law, you may or may not be entitled to a trial by jury when you are charged with a misdemeanor, since the U.S. Constitution does not require jury trials when misdemeanor charges are involved.

You are entitled to a trial by jury when you are charged with a felony, the most serious kind of crime. Typical felonies include murder, manslaughter, rape, arson, and robbery. And some crimes which might otherwise be classified as misdemeanors can be considered felonies depending on the manner in which they are committed. For example, assault and battery are usually misdemeanors, but when committed with a gun or other dangerous weapon, or when they are committed in an especially violent or brutal way, they are considered aggravated assault and battery, crimes categorized as felonies. Similarly, while shoplifting an item that costs a few dollars is usually a misdemeanor, shoplifting an item above a value specified by state law (such as $200) may be classified as a felony.

The penalties for committing a felony are the most severe allowed by law. For example, while a misdemeanor may be punishable by up to a year of imprisonment, a felony is usually punishable by at least a year in prison. A fine may also be imposed against a convicted felon. And for some very heinous felonies, such as premeditated murder, the majority of states allow the prosecution to seek the death penalty, while others may provide for a life sentence without the possibility of parole.

Green Cards

An alien registration card carried by permanent resident aliens.

It entitles the holder to live and work in the United States. After four years and nine months, a green card holder can apply to become a naturalized U.S. citizen.

U.S. immigration laws base eligibility for a green card on either work or family relationships. If you are the immediate relative of an American citizen – spouse, child, parent, or sibling – you can apply for a green card. If you are a spouse or a minor child of a U.S. citizen, your application will be reviewed and a visa will be immediately available for you. Other family members will have to wait for a visa to become available, which could take several years. The reason for this wait is that obtaining visas to enter the United States is a two-step process involving two government agencies. The Immigration and Naturalization Service, a unit of the Justice Department, reviews and approves visa applications, while the State Department actually issues the visas. Sometimes the INS will approve a visa but the State Department has no visas available.

If you find employment in the U.S. and the employer is willing to sponsor you, you are also eligible for a green card. The more education and skills you have and the more necessary your job is in the U.S., the sooner you will be able to enter the U.S. and obtain your green card. Computer software engineers and nurses, for example, are in short supply, while waiters and mechanics are not.

Finally, there is a green card lottery every year that makes green cards immediately available to people from different areas of the world on a rotating basis. If you are from a country selected for the lottery that year, you can submit a one-page application with your information and, if you are picked, the State Department will grant you a green card. Like all lotteries, however, your chances of winning are slim.

Ways to get a green card:

Labor Certification. The process of proving that there are insufficient qualified workers to perform a specific job in a specific region. This is typically a lengthy process.

Outstanding Researchers. International recognition for being an outstanding academic.

National Interest Waivers. Professionals whose service would be of a national interest to the U.S. can apply for a green card without a sponsoring employer.

Extraordinary Individuals. People at the top of their fields can skip the labor certification process and apply immediately for a green card.

Family Immigration. Family-based green card applications. Except for immediate family members-spouses, minor children, and parents-it is a lengthy process.

Asylum. The process for people who are in the U.S. and fear returning to their country for fear of persecution based on their race, religion, or membership in a political or social group.

Lottery. A yearly drawing for a green card.

E2 Visas

How to get investors visa

An E2 visa is a non-immigrant visa reserved for investors from countries that have commerce and navigation treaties or bi-lateral investment treaties with the United States who have invested substantial capital in a U.S. company and who wish to come to the United States to develop and direct business operations of the enterprise.

Who is eligible for an E2 visa?

Alien investors whose home country maintains a treaty of commerce and navigation or bi-lateral investment with the United States Who have made a “substantial investment”(normally at least $25,000 or more) in a U.S. business. The business is 50 percent owned by citizens of that treaty country who intend to come to the United States to direct the operations of the enterprise in a capacity that is either executive, supervisory, or involves specialized skills. They must possess means of support independent of the enterprise.

What constitutes a “substantial investment” that would justify the grant of an E-2 visa?

While there is no particular dollar amount specified under the law, the investment must amount to more than 50 percent ownership in an enterprise that generates active income, rather than passive income, such as that derived from rental properties. In practice, some immigration lawyers believe that a minimum of $25,000 is necessary, however. In short, the investment must be substantial in relation to the total amount invested in the enterprise. E-2 visa applicants can bolster their case by demonstrating that jobs for U.S. workers would be created through the investment.

Must the alien invest his or her own money to be eligible for an E-2 visa?

They usually do. However, under some circumstances, an E-2 visa recipient may be an employee of a foreign company that qualifies as a treaty investor. But the employee must come to the United States in an executive or supervisory capacity to direct the enterprise or possess a specialized skill needed by the enterprise.

May an E-2 visa holder be accompanied to the United States by his or her spouse and children?Yes. The spouse and unmarried, minor children of an E-2 visa holder may accompany him or her to the United States on E-2 visas as well. This visa, however, does not automatically grant the spouse and children the right to work in the United States.

May an E-2 visa holder apply for permanent residency in the United States?

Yes. Like other non-immigrant visas, such as the H1-B for alien professionals, an E-2 visa entitles its holder to apply for permanent residency.

How long are E-2 visas valid?

Two years. E-2 visas are renewable for an indefinite period, as long as the visa holder continues in the same capacity and the business is actively engaged in trade or services.

Countries that Maintain Treaties of Navigation and Commerce with the United States for E-2 Visa Purposes

Argentina, Armenia, Australia, Austria, Bangladesh, Belgium, Bulgaria, Cameroon, Canada, Colombia, Costa Rica, Czech Republic, Democratic Republic of the Congo, Ecuador, Egypt, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Ireland, Italy, Jamaica, Japan, Kazakhstan, Korea, Kyrgyzstan, Liberia, Luxembourg, Mexico, Moldova, Mongolia, Morocco, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Republic of Congo, Romania, Senegal, Slovak Republic, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, United Kingdom, and Yugoslavia.

Obtaining a non-immigrant visa can be a complicated process and may not always end with the desired result. While it is possible to obtain such visas successfully on your own, you may wish to save time and effort by hiring a qualified and experienced immigration lawyer. Our Find-a-Lawyer feature can put you in touch with an experienced attorney right now.