Concurring opinion by Associate Judge Thompson, at page 1266.

Dissenting opinion by Associate Judge Glickman, with whom Associate Judge Fisher joins, at page 1270.

Dissenting opinion by Associate Judge Fisher, with whom Associate Judge Glickman joins, at page 1271.

Ruiz, Senior Judge:

Jean-Baptiste Bado appeals his conviction for misdemeanor sexual abuse of a minor, after a bench trial, on the ground that he was denied the right to a jury trial guaranteed by the Sixth Amendment. The court, sitting en banc, is asked to decide whether the Sixth Amendment guarantees a right to a jury trial to an accused who faces the penalty of removal/deportation 1 as a result of a criminal conviction for an offense that is punishable by incarceration for up to 180 days. By itself, that period of incarceration does not puncture the six-month line past which an offense is deemed "serious" and jury-demandable. We hold that the penalty of deportation, when viewed together with a maximum period of incarceration that does not exceed six months, overcomes the presumption that the offense is petty and triggers the Sixth Amendment right to a trial by jury. The conviction is reversed and the case remanded for a jury trial.

I.

Appellant Jean-Baptiste Bado came to the United States on February 8, 2005, from Burkina Faso, where he was a pastor, fleeing at the time from "systematic[ ] prosecut[ion] and torture[ ]for his political and religious beliefs." Once in this country, he filed an application for asylum. His asylum proceeding continued for several years. It was halted in 2011, however, when he was charged by information with three counts of misdemeanor sexual abuse of a minor 2 because, if convicted, under U.S. immigration law he would be barred from receiving political asylum 3 and removed from the United States. 4 Appellant pleaded not guilty and demanded a jury trial, which was denied. At the bench trial, appellant took the stand and contradicted the charges, calling into question the complainant's credibility. He was acquitted of two of the charges but convicted of one count. He was sentenced to 180 days and ordered to pay $50 to the Crime Victims Compensation Program Fund and register as a sex offender for ten years. The United States commenced deportation proceedings on the basis of the conviction.

On appeal, a divided panel of the court reversed the conviction after concluding that appellant's right to a jury trial had been violated. Bado v. United States , 120 A.3d 50 , 52 (D.C. 2015). On granting the government's petition for rehearing en banc, the division's opinions were vacated. Bado v. United States , 125 A.3d 1119 (D.C. 2015). After a further round of briefing by the parties and amici curiae, and oral argument, we now hold that appellant has a constitutional right to a jury trial. Therefore, we reverse his conviction and remand the case to permit appellant to have a trial free from structural error 5 and to receive the "basic protection" of a trial before a jury. Sullivan v. Louisiana , 508 U.S. 275 , 281-82, 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993). 6

II.

The Sixth Amendment guarantees a bundle of trial rights to the accused in "all criminal prosecutions." U.S. CONST. amend. VI. The first of these is "the right to a speedy and public trial, by an impartial jury ...." Id. 7 The Supreme Court has interpreted the scope of the jury trial right, in the light of the common law, as applying to criminal prosecutions for "serious offenses." Duncan v. Louisiana , 391 U.S. 145 , 157-58, 88 S.Ct. 1444 , 20 L.Ed.2d 491 (1968). Criminal prosecutions for offenses that are not serious, but deemed to be "petty," may be tried by a judge without violating the Sixth Amendment.

The Supreme Court has set the parameters of what constitutes a "serious" offense under the Sixth Amendment. It is settled that any offense "where imprisonment for more than six months is authorized" cannot be considered "petty" for purposes of the right to trial by jury. Baldwin v. New York , 399 U.S. 66 , 67, 69-70, 90 S.Ct. 1886 , 26 L.Ed.2d 437 (1970) (noting that the distinction between "felonies" and "misdemeanors" is not the constitutional dividing line and that some misdemeanors, such as "jostling," 8 are deemed serious offenses). In Blanton v. City of N. Las Vegas , 489 U.S. 538 , 541-42, 109 S.Ct. 1289 , 103 L.Ed.2d 550 (1989), the Court set out the analytical framework to determine whether a particular offense punishable by incarceration for six months or less is to be deemed "serious," triggering the constitutional right to a jury trial, or "petty," leaving the question of a jury trial to resolution under other applicable law. 9 Noting that the maximum exposure to incarceration is usually the clearest indicator of the seriousness of an offense, the Court, following Baldwin's lead, stated that offenses with a maximum period of incarceration of six months are "presum[ptively] ... petty." Id. at 543 , 109 S.Ct. 1289 . The Court, however, declined to hold that all such offenses "automatically qualif[y] as [ ] 'petty' offense[s]," and established that the presumption can be overcome "if [the accused] can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a 'serious' one." Id.

In Blanton the Court applied that test to a conviction for driving under the influence by assessing the statutorily authorized penalties that could be imposed upon conviction for DUI: incarceration from a minimum of two days to a maximum of six months, or, alternatively, 48 hours of community service dressed in clothing identifying the convicted defendant as a DUI offender; a maximum penalty of $1,000; a 90-day suspension of a driver's license; and mandatory attendance at an alcohol abuse education course at the offender's expense. 489 U.S. at 539, 544-45 , 109 S.Ct. 1289 . The Court made clear that, in evaluating the seriousness of the offense, it considered the " maximum authorized prison sentence," id. at 544 , 109 S.Ct. 1289 (emphasis in original), 10 and that it considered only those potential penalties that are actually faced by the particular defendant, id. at 545, & n.12 , 109 S.Ct. 1289 . 11 The Court reasoned that, because the maximum period of incarceration did not exceed six months, the offense was presumptively petty. Id. at 544 , 109 S.Ct. 1289 . It then "[c]onsider[ed] the additional statutory penalties." Id. Of the distinctive garb required if the person were alternatively sentenced to a short period of community service, the Court stated that, even if it were "the source of some embarrassment," it would be "less embarrassing and less onerous than six months in jail." Id. 12 The Court considered the license suspension and concluded it was not "that significant" as a Sixth Amendment matter, in part because the record was unclear as to whether the suspension would be concurrent with the six-month incarceration, in which case it would be "irrelevant," and because a restricted license could be obtained after forty-five days. Id. & n.9, 109 S.Ct. 1289 . 13 The Court dismissed the mandatory alcohol abuse education course as a " de minimis " requirement. Id. at n.9, 109 S.Ct. 1289 . After taking into account all of the possible maximum statutory penalties that could be applied to the defendant, the Court concluded that "[v]iewed together, the statutory penalties are not so severe that DUI must be deemed a 'serious' offense for purposes of the Sixth Amendment." Id. at 545 , 109 S.Ct. 1289 . The Court applied a Blanton analysis one other time, in United States v. Nachtigal , another case that involved operating a motor vehicle while intoxicated. 507 U.S. 1 , 2, 113 S.Ct. 1072 , 122 L.Ed.2d 374 (1993). The possibility of a five-year probation and $5,000 fine did not convert the presumptively petty offense to a serious one for jury trial purposes, the Court held, because they did not approximate or entail as great a loss of liberty as the possibility of imprisonment for more than six months. Id. at 5 , 113 S.Ct. 1072 .

III.

We apply a Blanton analysis in this case. In light of the 180-day maximum exposure to incarceration for misdemeanor sexual abuse of a minor, we begin with the presumption that the offense is "petty" for Sixth Amendment purposes. The question before us is whether the possibility of deportation refutes that presumption. We note the obvious: there is no comparison between the penalty of deportation and the statutory penalties considered in Blanton (temporary license suspension, embarrassing clothing to be worn during two days of community service, and alcohol abuse education course) that were deemed not significant enough to render the DUI offense serious under the Sixth Amendment. Like incarceration, deportation separates a person from established ties to family, work, study, and community. In this forced physical separation, it is similar "in severity [to] the loss of liberty that a prison term entails." Blanton , 489 U.S. at 542 , 109 S.Ct. 1289 (distinguishing probation and fines which, although they "may engender 'a significant infringement of personal freedom,' ... cannot approximate in severity the loss of liberty that a prison term entails") (internal citation omitted) (quoting Frank v. United States , 395 U.S. 147 , 151, 89 S.Ct. 1503 , 23 L.Ed.2d 162 (1969) ). Baldwin held that the possibility of a sentence in excess of six months automatically renders an offense serious under the Sixth Amendment, entitling the accused to a jury trial. Removal, however, can be more severe than the possibility of a six-month sentence of incarceration. Once the actual sentence is served (which could be for a term less than the six-month maximum, or even only probation), a U.S. citizen can return home to family and community and take steps to resume and, possibly, redirect his life. But when a person faces deportation, serving the sentence is only the first step following conviction; once the sentence is completed, the person faces the burdens and anxiety that attend detention pending removal proceedings. Upon removal, the physical separation from family and community lasts at least ten years and, for some, including Mr. Bado, exclusion from the country becomes permanent. 14 This disruption causes harm and suffering to those who are forced to leave and those who remain. Wrenching decisions might have to be made within the family, which could be left without an important source of emotional and financial support. Those families often include children and other family members who are United States citizens and who may be forced to leave this country to preserve familial bonds with a parent or other relative no longer able to remain in the United States, or to continue to receive their financial support. 15 For some, deportation may expose them to harsh conditions in their country of origin including extreme poverty, violence and oppression and persecution based on religious and political beliefs. As the Court has recognized, removal is considered by many immigrants to be worse than incarceration, such that "preserving the [ ] right to remain in the United States may be more important [ ] than any potential jail sentence." Lee v. United States , --- U.S. ----, 137 S.Ct. 1958 , 1968, 198 L.Ed.2d 476 (2017) (quoting Padilla , 559 U.S. at 368, 130 S.Ct. 1473 ).

The Supreme Court has "long recognized that deportation is a particularly severe 'penalty,' " equating it to "banishment." Padilla , 559 U.S. at 365, 373, 130 S.Ct. 1473 (quoting Fong Yue Ting v. United States , 149 U.S. 698 , 740, 13 S.Ct. 1016 , 37 L.Ed. 905 (1893) ); see, e.g. , Fong Haw Tan v. Phelan , 333 U.S. 6 , 10, 68 S.Ct. 374 , 92 L.Ed. 433 (1948) ("[D]eportation is a drastic measure and at times the equivalent of banishment or exile."); Fong Yue Ting , 149 U.S. at 740 , 13 S.Ct. 1016 (Brewer, J., dissenting) ("Every[ ]one knows that to be forcibly taken away from home, and family, and friends, and business, and property, and sent across the ocean to a distant land, is punishment; and that oftentimes most severe and cruel."). Removal that results from conviction erects a bar to entry into the United States, 16 with all the grave consequences that preclusion entails: loss of our country's constitutional protections, the ability to engage with its social institutions, and access to educational and economic opportunities. These are the cherished values that have beckoned to people in other lands since our country's founding and continue to provide hope for those seeking a better life and refuge for those escaping violence and persecution. Their loss is so great as to be unquantifiable. The loss of liberty, akin to incarceration, that results from removal as well as the Court's repeated statements about its severity, lead us to conclude, under a Blanton analysis, that deportation is so "onerous" a penalty for conviction that it presents the "rare situation" that should ensure the availability of a jury trial in a criminal proceeding even though the penalty of incarceration does not "puncture the six-month incarceration line." Blanton , 489 U.S. at 543 , 109 S.Ct. 1289 .

IV.

The government agrees that, under Blanton , there is a two-step analysis: (1) identification of the penalties for conviction of an offense, and (2) an evaluation of whether the penalties, viewed together, are sufficiently severe to warrant a jury trial by comparison to the possibility of imprisonment for more than six months, which the Court has established (when considering only incarceration) as the constitutional dividing line between petty and serious offenses. The government does not dispute that deportation is a severe penalty. The government's arguments boil down to one contention, that deportation is not the type of penalty that Blanton contemplated should be taken into account in determining whether an offense is deemed serious under the Sixth Amendment. Specifically, the government contends that: (1) removal is not a penalty for a criminal offense; (2) removal should not be considered because it is imposed by Congress, not the Council of the District of Columbia, which created the offense; (3) longstanding precedent establishes that deportation is not "punishment"; and (4) the courts of the District of Columbia are not competent to determine the deportation consequence of criminal conviction. As we now discuss, we are not persuaded by the government's arguments to diverge from a straightforward application of a Blanton analysis that includes the penalty of deportation.

A. Deportation is a Penalty for a Criminal Conviction

As the Court has recognized, "[o]ur law has enmeshed criminal convictions and the penalty of deportation for nearly a century." Padilla , 559 U.S. at 365-66, 130 S.Ct. 1473 . In this case, there is no dispute that the offense of misdemeanor sexual abuse of a minor exposes appellant to removal. Appellant had been in proceedings seeking asylum that were terminated pending his criminal trial because, if convicted, he would be ineligible for asylum and deported. 17 The government sought to deport him upon his conviction. The government argues, however, that removal, even if it is triggered by a criminal conviction, is a "civil" sanction that should not be considered in a Blanton analysis. We disagree. As Blanton emphasized, whether the Sixth Amendment guarantees a jury trial is determined by reference to the possible statutory "penalties" that "attach[ ] to" conviction of the offense:

In using the word "penalty," we do not refer solely to the maximum prison term authorized for a particular offense. A legislature's view of the seriousness of an offense also is reflected in the other penalties that it attaches to the offense . We thus examine "whether the length of the authorized prison term or the seriousness of other punishment is enough in itself to require a jury trial."

489 U.S. at 542 , 109 S.Ct. 1289 (first emphasis added and internal citation omitted) (quoting Duncan , 391 U.S. at 161 , 88 S.Ct. 1444 ). The Court did not parse whether "the other penalties" were "penal" or "civil" in nature, and took care to consider the relative burdens imposed by each of several penalties that were "civil" in nature:

temporary license suspension, 48 hours of community service, a fine, and required attendance at an alcohol abuse education course. Id. at 543-44, 109 S.Ct. 1289 . We see no foothold in Blanton for the distinction the government urges in this appeal.

Reprising the "civil" versus "penal" point, the government argues that removal resulting from conviction is merely the prescribed remedy in a regulatory-type proceeding that enforces provisions in the immigration laws that define who is permitted to stay in the country. 18 No one doubts that the government has the power to deport persons, so long as it is exercised pursuant to statutory authority and consistent with the Constitution. That is not the issue here. In this case, we are concerned with the constitutional rights guaranteed to the accused under the Sixth Amendment in a criminal prosecution that could result in deportation. The government's argument that deportation, as a civil penalty, is not relevant to our inquiry is refuted by Blanton , where the Court considered the possible penalty of license suspension following conviction for DUI relevant in deciding whether the Sixth Amendment guarantees that apply to criminal prosecutions required a jury trial. A license can be suspended, even in the absence of conviction, for purely regulatory reasons such as failure to renew or driving without prescribed vision correction, just as a person may be subject to removal for violating the terms of admission absent a criminal conviction. Yet, in Blanton , the Court took into account the possibility of a license suspension as part of its Sixth Amendment analysis because the statute provided that suspension of licensing privileges was a penalty for a DUI conviction. Similarly here, a statutory provision imposes deportation as a penalty for conviction.

Moreover, the argument that characterizes deportation as a "non-criminal" sanction is at odds with (and relies on cases that precede) current law and practice under the 1996 amendments to the Immigration and Naturalization Act ("INA") 19 which provide that removal proceedings are triggered by conviction of a number of state and federal offenses. Cognizant of these changes in the law, the Court has soundly rejected the notion that removal is merely a collateral consequence of criminal conviction, distinct from a criminal penalty, and has instead recognized that "as a matter of federal law, deportation is an integral part-indeed, sometimes the most important part-of the penalty that may be imposed on noncitizen defendants." Padilla , 559 U.S. at 364, 130 S.Ct. 1473 . The "drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes." Id. at 360, 130 S.Ct. 1473 (internal citation and quotation omitted). To characterize deportation in a case like this as merely a civil remedy separate from the penalty for conviction is not only contrary to Blanton's analysis; it also flies in the face of the Court's repeated statements in recent opinions that the penalty of removal plays a central role in criminal proceedings involving noncitizens. See Sessions v. Dimaya , 584 U.S. ----, 138 S.Ct. 1204 , 1213, 200 L.Ed.2d 549 (2018) ("[A]s federal immigration law increasingly hinged deportation orders on prior convictions, removal proceedings became ever more 'intimately related to the criminal process.' " (quoting Chaidez v. United States , 568 U.S. 342 , 352, 133 S.Ct. 1103 , 185 L.Ed.2d 149 (2013) (in turn quoting Padilla , 559 U.S. at 365, 130 S.Ct. 1473 ) ). The civil/criminal distinction the Court said in Padilla is "ill suited" to evaluating a Sixth Amendment claim of ineffective assistance of counsel, Padilla at 366, 130 S.Ct. 1473 , is equally ill-suited to evaluating a claim to a jury trial, which is another in the group of rights guaranteed by the Sixth Amendment to the accused in a criminal prosecution. 20 Cf. Dimaya , 584 U.S. at ----, 138 S.Ct. at 1212-13 (noting government's civil/criminal distinction and rejecting the argument that because deportation is a civil sanction, a less searching standard should apply in a due process evaluation of a void-for-vagueness challenge under the Fifth Amendment).

Finally, the argument that deportation is simply a civil measure also overlooks that harsher substantive and procedural requirements apply when deportation is triggered by a criminal conviction than in "regulatory" deportations, such as when a person is out of status ( e.g ., a person who is working without authorization or enters on a student visa and is no longer in school). Those who are removed as a result of a criminal conviction are ineligible for reentry for a longer period or permanently barred, 21 they are more likely to be detained pending removal proceedings, and, once a removal order has been entered, they are also streamlined through expedited removal proceedings, subjected to additional periods of detention, and extremely limited in their eligibility for relief from deportation. 22 These harsher provisions are not generally applicable, nor are they triggered by any circumstance other than the conviction of a crime (or admission of criminal behavior) and, thus, distinguish removal upon conviction from regulatory removals. As the Court has observed, once a noncitizen has been convicted of a removable offense, detention and removal are "practically inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General." Padilla , 559 U.S. at 363-64, 130 S.Ct. 1473 . Exercise of these "limited remnants" of executive discretion is rare as the government's enforcement policies have prioritized the removal of persons who have been convicted of crimes, ensuring that they are much more likely to be deported than others who could be removed as part of the regulatory process. 23

The government argues that removal should not be considered a penalty in a Blanton analysis because (1) the sentencing court does not have authority to order deportation upon conviction for a deportable offense 24 and (2) there would be an "anomaly" if a noncitizen would be entitled to a jury trial but a citizen would not. Neither of these is a factor whose relevance can be gleaned from Blanton , which focused on the possible penalties faced by the accused claiming the right to demand a jury trial, without regard to the mechanics by which the penalty is imposed. For example, the Court's consideration of the license suspension for the DUI conviction in Blanton was not dependent on whether it was imposed by the sentencing court. 489 U.S. at 539 , 109 S.Ct. 1289 (citing Nev. Rev. Stat. § 483.460 (1)(c) ) (noting that suspension occurred "automatically"). Moreover, by expressly declining to consider other enhanced penalties that were not faced by the accused individual, id. at 545 n.12, 109 S.Ct. 1289 , Blanton made clear that what is relevant to the Sixth Amendment analysis are the potential penalties to which the particular defendant is exposed upon conviction. 25 In an analogous circumstance, we have rejected a claim that an enhanced penalty for recidivism triggers a jury trial right where the defendant was not "personally" facing the penalty. See Brown v. United States , 675 A.2d 953 , 954 (D.C. 1996). Thus, because citizens can never be deported, it is hardly anomalous that Blanton's penalty-oriented Sixth Amendment analysis could render a different result for citizens than for noncitizens who face the additional, and concededly serious, penalty of deportation. 26 Similarly, it would not be anomalous if one citizen who faces a more severe penalty such as a greater period of incarceration for a repeat offense is entitled to a jury trial whereas another citizen who faces lesser penalties is not. 27 The government offers no compelling reason why we should engraft additional requirements to the factors set out by the Court that are not relevant to Blanton's focus on the potential penalties that are faced by the accused individual. If, viewed together with the maximum period of incarceration, the penalties' severity is comparable to a prison sentence of more than six months, the Sixth Amendment entitles the accused to a jury trial. 28

B. Congress Has Imposed the Deportation Penalty for Criminal Conviction

The government further argues that removal that is triggered by a criminal conviction should not be taken into account because it is a penalty that results from a congressional enactment and is not part of the penalty designated by the legislature that created the offense, in this case, the Council of the District of Columbia. This argument misapprehends Blanton 's meaning and is contrary to its purpose. 29 In Blanton , the Court rejected the notion that a court may gauge the seriousness of an offense for Sixth Amendment purposes by coming to a subjective judgment about the "nature" of the offense. 489 U.S. at 541-42, & n.5 , 109 S.Ct. 1289 . Instead, the seriousness of an offense is to be assessed by reference to objective standards-penalties-"resulting from state action, e.g. , those mandated by statute or regulation." Id. at 543 n.8, 109 S.Ct. 1289 . Through the penalties mandated by public officials and elected representatives, "the laws and practices of the community [are] taken as a gauge of its social and ethical judgments." Id. at 541 n.5, 109 S.Ct. 1289 (citing District of Columbia v. Clawans , 300 U.S. 617 , 628, 57 S.Ct. 660 , 81 L.Ed. 843 (1937) ). 30 Congress, as the national legislature, is presumed to reflect the nation's social and ethical judgments; moreover, it is the only legislative body that can prescribe the penalty of removal for a criminal conviction. See United States v. Arizona , 641 F.3d 339 , 349 (9th Cir. 2011), partially rev'd on other grounds , 567 U.S. 387 , 132 S.Ct. 2492 , 183 L.Ed.2d 351 (2012) ("[R]emoval is exclusively the purview of the federal government.") ) That penalty is triggered by conviction of an offense that falls within offense classifications identified by Congress in the INA, regardless of whether the conviction results from violations of federal, state, or District of Columbia law. 31 There is no reason grounded in the purpose of Blanton's penalty-based analysis to exclude from Sixth Amendment consideration the serious penalty of removal that attaches to a criminal conviction, and to which the accused is exposed, because it has been imposed by Congress rather than the local legislature. 32 C. Principles Applicable to Constitutional Provisions Other Than the Sixth Amendment Right to Jury Trial

The government points to cases holding that deportation is not "punishment" for a crime and argues that Padilla's acknowledgement that it is a serious penalty central to a criminal conviction did not sub silentio overrule them. The cases on which the government relies are not on point because they did not present a Sixth Amendment claim, but arose under different constitutional provisions, the Double Jeopardy Clause of the Fifth Amendment, U.S. CONST. amend. V, and the Ex Post Facto Clause, id. , art. I, § 10. This is a significant difference. Because the Constitution's text is silent as to how these Clauses are to be applied, the Court has ruled that the question turns on whether a law "retroactively alter[s] the definition of [a] crime[ ] or increase[s] the punishment for criminal acts," Collins v. Youngblood , 497 U.S. 37 , 43, 110 S.Ct. 2715 , 111 L.Ed.2d 30 (1990) (Ex Post Facto Clause); or whether the state is "punishing twice, or attempting a second time to punish criminally, for the same offense," Helvering v. Mitchell , 303 U.S. 391 , 399, 58 S.Ct. 630 , 82 L.Ed. 917 (1938) (Double Jeopardy Clause). The threshold question of whether either of these Clauses applies in a particular case therefore depends on whether the law or government action under judicial review involves a criminal offense or punishment for a crime. 33 There is no similar threshold question here, however, because the Sixth Amendment by its terms applies to "all criminal prosecutions," U.S. CONST. amend. VI, and this case involves a criminal prosecution. The question before us is different, whether the penalties that attach if the criminal prosecution results in a conviction for misdemeanor sexual abuse of a minor meet the Court's definition of what constitutes a "serious" offense that would entitle the accused to demand that the criminal prosecution be presented to, and decided by, a jury. This explains why Padilla , which also dealt with the scope of another of the Sixth Amendment rights of the accused in a criminal prosecution-the right to effective assistance of counsel-did not need to overrule any of the cases cited by the government, which arose under other constitutional provisions. 34 Padilla recognizes that deportation, even though "it is not, in a strict sense, a criminal sanction," because of its "unique nature," is nonetheless a "penalty" that is so "enmeshed" in the criminal consequences of a conviction that it triggers the right to the assistance of counsel under the Sixth Amendment. 559 U.S. at 365-66, 130 S.Ct. 1473 . Thus, even though it did not decide the question presented in this case, Padilla supports (and the cases on which the government relies do not undermine) that removal is a penalty to be factored in when applying the Court's penalty-oriented Blanton analysis to determine whether the accused has a Sixth Amendment right to a jury trial in a criminal prosecution.

D. Practicality of Application

Finally, the government asserts that there are "practicalities and uncertainties" as to whether conviction of an offense renders a defendant removable which could make application of a Blanton analysis difficult in some cases. 35 The government does not argue that any such difficulties are presented in this case, as it agrees that appellant's conviction makes him deportable. 36 Our holding today is clear: the Sixth Amendment entitles a defendant to a jury trial if he is charged with a deportable offense, even if the maximum period of incarceration does not exceed six months. The statutory basis for the deportation penalty is readily ascertainable, as the INA identifies categories of offenses that render a convicted noncitizen defendant deportable. See 8 U.S.C. § 1227 (a)(2) (2012). 37 There is no dearth of law on the subject: decisions of the Board of Immigration Appeals ("BIA"), 38 cases from other jurisdictions, 39 and guidance provided by federal agencies charged with administration of admission and exclusion of persons to the United States. 40

Even if they were not purely hypothetical here, the difficulties that the government fears may come to pass in some other case are too remote and of insufficient import to outweigh the loss of the constitutional right to a jury trial. Blanton's penalty-oriented analysis was intended to safeguard this important right where the severity of the potential penalties raises the stakes in a criminal prosecution. In a case where the prosecution and defense are in disagreement on the question of whether an accused will face the serious penalty of deportation if convicted, the trial court is not without resources to come to a sound resolution of the constitutional issue presented. Government counsel are part of the Department of Justice, which has deep expertise in immigration matters and is part of the same executive branch as the Departments of State and Homeland Security, which have responsibility for enforcing the immigration laws. Defense counsel have an obligation to advise their clients competently on the question of immigration consequences. See Padilla , 559 U.S. at 369, 130 S.Ct. 1473 . If necessary, the court presiding over a criminal prosecution can appoint its own expert advisor on immigration law.

We do not expect this to be a common occurrence in Superior Court. Although genuine disputes about deportability might arise in an immigration proceeding, we think they will seldom occur in the context of a pretrial demand for a jury trial. It is not very likely that a defendant would challenge the government's representation in court that an offense is not deportable, or that the government would make such a representation without being confident that its position is legally correct. 41 The opposite situation, where the government were to assert (contrary to the defendant's view) that a charged offense is deportable, and thus, jury demandable, presents no issue as the defendant may always waive the right to a jury trial. If the trial court nonetheless must decide a jury demand based on a difficult and unsettled question of deportability, it has the obligation-as in so many other areas 42 -to decide the constitutional issue to the best of its ability. See D.C. Code § 16-705 (a) (mandating that where the Constitution so requires, trial "shall be by jury" unless waived by defendant). Where a jury trial demand is made in a case with a truly vexing issue of deportability, the trial court can decide to default to recognition of the Sixth Amendment right, and avoid the risk of imperiling a conviction that may be obtained after a bench trial, should it eventually be determined that denial of the jury trial demand was based on a flawed judgment on the deportation question. The additional time required for a jury trial may well be offset by the time saved in pretrial argument. Even if some judicial efficiency might be lost, in the weighing of harms and benefits on a constitutional scale, this remote possibility is not a determinative factor.

***

We conclude that the penalty of deportation, when viewed together with the 180-day maximum period of incarceration for misdemeanor sexual abuse of a minor, overcomes the presumption that appellant was charged with a petty offense and triggers the Sixth Amendment right to a trial by jury. As appellant was denied his rightful demand for a jury trial, the conviction is reversed and the case is remanded for further proceedings.

So ordered.

Opinion for the court by Senior Judge Ruiz, with whom Chief Judge Blackburne-Rigsby, and Associate Judges Beckwith and Easterly, and Senior Judge Washington, join.

As my colleagues have made clear in their competing opinions in this case, our attempt to reconcile the Supreme Court's decisions in Baldwin v. New York , 399 U.S. 66 , 90 S.Ct. 1886 , 26 L.Ed.2d 437 (1970), and Blanton v. City of N. Las Vegas , 489 U.S. 538 , 109 S.Ct. 1289 , 103 L.Ed.2d 550 (1989), with the D.C. Misdemeanor Streamlining Act, see Omnibus Criminal Justice Reform Act of 1994, D.C. Law § 10-151, 41 D.C. Reg. 2608 (effective Aug. 20, 1994), has resulted in a decision where two individuals charged with the same misdemeanor crime in the District of Columbia enjoy very different trial rights and privileges due to the severity of the consequences they individually face for committing that crime. I write separately because I am concerned that our decision today, while faithful to the dictates of Blanton , creates a disparity between the jury trial rights of citizens and noncitizens that lay persons might not readily understand. That disparity is one that the legislature could and, in my opinion, should address. The failure to do so could undermine the public's trust and confidence in our courts to resolve criminal cases fairly.

In Baldwin , the Supreme Court interpreted the Sixth Amendment to the Constitution as guaranteeing a right to a jury trial only in criminal cases where an individual is charged with committing serious crimes. The Court went on to distinguish between serious and non-serious crimes, concluding that a serious crime was one that carried the possibility of incarceration for six months or more. Baldwin , 399 U.S. at 69 , 90 S.Ct. 1886 .

In Blanton , the Supreme Court, while reiterating that the maximum potential sentence that can be imposed for the commission of a crime is a significant indicator of whether society considers the crime to be serious, also acknowledged that the length of the potential sentence does not necessarily end the inquiry if there are other "objective indications of the seriousness with which society regards the offense." Blanton , 489 U.S. at 541 , 109 S.Ct. 1289 (quoting Frank v. United States , 395 U.S. 147 , 148, 89 S.Ct. 1503 , 23 L.Ed.2d 162 (1969) ). As the majority opinion points out, the Supreme Court did not parse whether "the other penalties" were "penal" or "civil" in nature and referenced several penalties that were "civil" in nature when assessing the relative burdens faced by defendants in criminal cases.

The Misdemeanor Streamlining Act (Act), passed in 1994, was designed to "relieve pressure on the court's misdemeanor calendars, allow for more cases to be heard by hearing commissioners, and allow for more felony trials to be scheduled at an earlier date." Council for the District of Columbia, Committee on the Judiciary, Report on Bill 10-98, at 3-4 (Jan. 26, 1994). The Act sought to accomplish these goals by reducing the maximum sentence that could be imposed for the commission of most misdemeanor crimes in the District of Columbia from six months or more to 180 days or less. By reducing the maximum possible sentence for the majority of misdemeanor offenses, the crimes no longer met the Baldwin threshold for serious crimes, and thus, the vast majority of defendants in the District of Columbia charged with misdemeanor crimes were no longer constitutionally entitled to a jury trial. Before today, we rarely, if ever, looked past the legislative intent expressed in the relevant criminal statutes to determine whether the Council and/or Congress intended for the crime to be considered a serious one. However, because we have interpreted Blanton as authorizing a broader view of the applicable statutory penalties for determining whether the crime is considered serious, we are in the unenviable position of trying to ascertain legislative intent without the benefit of a well-developed legislative record.

As Justice Gorsuch recently noted in his concurring opinion in Sessions v. Dimaya , "[G]rave as th[e deportation] penalty may be ... many civil laws today impose ... many similarly severe sanctions." --- U.S. ----, 138 S.Ct. 1204 , 1231, 200 L.Ed.2d 549 (2018) (Gorsuch, J., concurring). That fact has not been lost on this court as we also have recognized that there are significant, if not similarly severe, sanctions that attach to convictions for misdemeanors in the District of Columbia. See Foote v. United States , 670 A.2d 366 , 370 (D.C. 1996) (noting that appellant's counsel identified collateral consequences to include "residential eviction, forfeiture of assets, revocation of driving privileges, ... ineligibility for federal benefits, and enhanced periods of incarceration for repeat offenders") (footnotes omitted); see also Thomas v. United States , 942 A.2d 1180 , 1186 (D.C. 2008) (condition that defendant register under the Sexual Offender Rehabilitation Act did not render misdemeanor child sexual abuse a jury-demandable crime); Young v. United States , 678 A.2d 570 , 571 (D.C. 1996) ("[T]he potential loss of a driver's license for one convicted of a misdemeanor drug offense carrying a maximum penalty of six months imprisonment in this jurisdiction does not transmogrify this petty offense into a serious offense requiring a jury trial.").

However, and for the first time, a majority of our court has relied on a collateral civil statutory penalty to transmogrify an otherwise petty offense into a serious crime and that means that the courts likely will be faced with new challenges in individual cases to the Act's limitation on the right to jury trials in misdemeanor cases. The majority opinion sees this as a relatively inconsequential matter as they believe that it will be the rare case where another civil statutory penalty will be considered severe enough to entitle a defendant to a jury trial in a misdemeanor case, while the dissent acknowledges the disparity, but argues that the anomaly supports their position that those of us in the majority are interpreting the Supreme Court's opinion in Blanton v. City of N. Las Vegas too expansively. Regardless, I agree with Justice Gorsuch's comment above that there are many other severe civil statutory penalties that have been attached to criminal convictions, in addition to deportation and, because it is the legislature's intent that must guide our analysis, the Council should speak clearly to the issue of whether the civil penalties that attach to certain misdemeanor crimes reflects a legislative judgment that the commission of those crimes is more serious than the potential criminal sentence might suggest. See Blanton , 489 U.S. at 541-42 , 109 S.Ct. 1289 ("The judiciary should not substitute its judgment as to seriousness for that of a legislature, which is 'far better equipped to perform the task, and is likewise more responsive to changes in attitude and more amenable to the recognition and correction of their misperceptions in this respect.' ") (brackets and citation omitted).

Alternatively, the Council could reconsider its decision to value judicial economy above the right to a jury trial. Restoring the right to a jury trial in misdemeanor cases could have the salutary effect of elevating the public's trust and confidence that the government is more concerned with courts protecting individual rights and freedoms than in ensuring that courts are as efficient as possible in bringing defendants to trial. This may be an important message to send at this time because many communities, especially communities of color, are openly questioning whether courts are truly independent or are merely the end game in the exercise of police powers by the state. Those perceptions are fueled not only by reports that police officers are not being held responsible in the courts for police involved shootings of unarmed suspects but is likely also promoted by unwise decisions, like the one that authorized the placement of two large monuments to law enforcement on the plaza adjacent to the entrance to the highest court of the District of Columbia.

One of the ways that the founders sought to ensure that citizens were protected from overreaching by the government was to guarantee a right to a jury trial to anyone charged with a crime. John Adams is famously quoted as saying, "Representative government and trial by jury are at the heart and lungs of liberty," Rauf v. State , 145 A.3d 430 , 465 n.216 (Del. 2016) (quoting Statement of John Adams (1774) ), and Thomas Jefferson "consider[ed] a trial by jury as the only anchor ... imagined by man by which a government can be held to the principles of its constitution." Letter from Thomas Jefferson to Thomas Paine (July 11, 1789), in 15 The Papers of Thomas Jefferson, 27 March 1789-30 November 1789, 266 (Julian P. Boyd ed., 1958), http://founders.archives.gov/documents/ Jefferson/01- 1502-0259. It is why the right to a jury trial is enshrined in the Sixth Amendment to the Constitution. And, while the D.C. Council complied with the letter of the law when it reduced the potential sentences for misdemeanor crimes to a level that made them non-jury demandable, that decision made us one of the few state court jurisdictions in the country that does not guarantee a right to a jury trial for those charged with criminal misdemeanors. 1 Most states recognize that a jury trial in criminal cases is critically important because of the stigma that accompanies a criminal conviction and many of those states accept the fact that any period of incarceration, no matter how short, can have a devastating impact on one's life and livelihood. See, e.g. , State v. Benoit , 354 Or. 302 , 311 P.3d 874 , 882 (2013) (en banc) (requiring that any defendant subjected to pretrial arrest and detention be provided a jury trial, even if the state reduces such charge to a citation-only violation, as "[t]he stigma caused by criminal pre-charging procedures will not disappear when the prosecutor elects to charge a civil infraction") (quoting State v. Freeman , 487 A.2d 1175 , 1178 (Me. 1985) ); State v. Weltzin , 630 N.W.2d 406 , 410 (Minn. 2001) (broadening the right to a jury trial to include all prosecutions where the penalty includes any incarceration).

So, perhaps the answer to the anomaly created by our decision today is to hew more closely to the plain language of the Sixth Amendment and make no distinction between serious and petty crimes when it comes to an individual's right to a jury trial. If the Council chooses this latter path, it will not only address the disparity created by our attempt to faithfully apply Blanton in this case, but the District would also be rejoining the majority of other states where a jury trial in a criminal case is the norm, and not the exception. To me, this latter approach has many virtues.

Thompson, Associate Judge, concurring in the judgment:

The Supreme Court has instructed that, pursuant to the Sixth Amendment, a defendant who faces a maximum prison term of six months or less "is entitled to a jury trial ... if he can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a 'serious' one." 1 Blanton v. City of N. Las Vegas , 489 U.S. 538 , 543, 109 S.Ct. 1289 , 103 L.Ed.2d 550 (1989) (emphasis added); United States v. Nachtigal , 507 U.S. 1 , 3-4, 113 S.Ct. 1072 , 122 L.Ed.2d 374 (1993). Especially after the Supreme Court's opinion in Padilla v. Kentucky , 559 U.S. 356 , 130 S.Ct. 1473 , 176 L.Ed.2d 284 (2010), I believe there is little room for dispute that deportation or "removal," which the federal immigration statute prescribes for non-citizens convicted of any of a broad range of crimes, is a "particularly severe [statutory] penalty," 2 id. at 365, 130 S.Ct. 1473 , and "is an integral part-indeed, sometimes the most important part-of the penalty that may be imposed on noncitizen defendants who [are found] guilty [of] specified crimes." Id. at 364, 130 S.Ct. 1473 (footnote omitted); see also Sessions v. Dimaya , 584 U.S. ----, 138 S.Ct. 1204 , 1209, 200 L.Ed.2d 549 (2018) (reiterating that "deportation is a particularly severe penalty, which may be of greater concern to a convicted alien than any potential jail sentence," and that "removal proceedings [have become] ever more intimately related to the criminal process" (internal quotation marks omitted) ). Under the test set out in Blanton , however, to determine whether the immigration statute's prescription of deportation as an additional penalty for a non-citizen convicted of a specified criminal offense triggers the Sixth Amendment right to trial by jury, we must also ask whether the penalty of deportation "clearly reflect[s]" a determination by Congress that the offense is a " 'serious' one." Blanton , 489 U.S. at 543 , 109 S.Ct. 1289 .

In my view, we have no basis for concluding that Congress's prescription of deportation for non-citizens who are found to have committed any of the criminal offenses to which the deportation penalty is attached clearly reflects a determination by the legislature that all such offenses are serious ones. Congress has broadly declared as "deportable" offenses everything from possession of any more than 30 grams of marijuana to mass murder. Its declaration that conviction-of any of a long list of enumerated but quite different types of offenses-renders a non-citizen "deportable" is scant if any evidence that it views the offenses as serious in the Sixth Amendment sense. Indeed, as other courts have recognized, in general, the immigration-law treatment of a non-citizen convicted of a "deportable" crime frequently turns not on the seriousness of the crime committed but on the status of the non-citizen in other respects. For example, in Reyes v. Holder , 714 F.3d 731 (2d Cir. 2013), the Second Circuit focused on the fact that an unadmitted alien convicted of a deportable "crime of moral turpitude" can qualify for a so-called "petty offense exception" to removal, while "[a] conviction involving [the same] petty offense ... may still render an admitted alien deportable [.]" Id. at 735 . 3 The Second Circuit explained that "[a]lthough it may seem anomalous that a legally admitted alien can be rendered ineligible for special rule cancellation of removal while an unadmitted alien who committed the same crime can remain eligible, we have previously noted that Congress's harsher treatment of legal permanent residents ('LPRs') may be justified on the basis that 'an LPR's violation of American laws represents a greater betrayal or poses a heightened concern of recidivism, and therefore calls for harsher measures under the immigration laws.' " Reyes v. Holder , 714 F.3d at 737 (quoting Jankowski-Burczyk v. INS , 291 F.3d 172 , 179 (2d Cir. 2002) ) (citing Gonzalez-Gonzalez v. Ashcroft , 390 F.3d 649 , 652 (9th Cir. 2004) ("LPRs enjoy substantial rights and privileges not shared by other aliens, and therefore it is arguably proper to hold them to a higher standard and level of responsibility than non LPRs.") ). The Reyes court also described Congress's action in amending the immigration statute in an attempt to "prevent the mass deportation of aliens who had arrived from some former Soviet bloc and Central American nations," by allowing them, including individuals with certain criminal convictions, to apply for " 'special rule' protection from deportation." Reyes , 714 F.3d at 733 (quoting Tanov v. INS , 443 F.3d 195 , 199 (2d Cir. 2006) ); see 8 C.F.R. § 1240.66 (c) (2014). It might be said in short that immigration-law consequences of criminal conduct have less to do with the seriousness of offenses and more to do with a variety of other congressional policies and objectives with respect to characteristics of the offenders themselves.

Furthermore, in the immigration statute, Congress has afforded non-citizens who have been convicted of some "deportable" offenses avenues of relief to avoid actual removal. See 8 U.S.C. § 1229b (a)(3) ("The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien ... has not been convicted of any aggravated felony" (emphasis added) ). This, I believe we can conclude, is a signal from Congress that some offenses that expose non-citizens to the threat of deportation are not so serious after all. At the very least, the fact that Congress has authorized cancellation of removal for non-citizens convicted of any of a number of crimes precludes us from finding that the general penalty of removal " clearly reflect [s] a legislative determination that [such] offense[s] ... [are] 'serious' one[s]." 4 Blanton , 489 U.S. at 543 , 109 S.Ct. 1289 . Stated differently, the provisions of the federal immigration statute that render a convicted non-citizen "deportable" do not "furnish[ ] us with [an]

objective criterion by which a line could ... be drawn ... between offenses that [Congress does or does not] regard[ ] as 'serious[.]' " Baldwin v. New York , 399 U.S. 66 , 72-73, 90 S.Ct. 1886 , 26 L.Ed.2d 437 (1970).

By contrast, with respect to one category of offenses-those that Congress has termed "aggravated felonies"-Congress has given what I believe are clear signals that it regards the offenses as serious. In 8 U.S.C. § 1229b (a)(3), Congress has provided that ("[t]he Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien ... has not been convicted of any aggravated felony " (emphasis added) ). As the Supreme Court recognized just this term in Dimaya , "removal is a virtual certainty for an alien found to have an aggravated felony conviction." 584 U.S. at ----, 138 S.Ct. at 1211 ; see also Lopez v. Gonzales , 549 U.S. 47 , 50, 127 S.Ct. 625 , 166 L.Ed.2d 462 (2006) ("[T]he Attorney General's discretion to cancel the removal of a person otherwise deportable does not reach a convict of an aggravated felony."); United States v. Couto , 311 F.3d 179 , 183-84 (2d Cir. 2002) ("[T]he Immigration and Nationality Act eliminated all discretion as to deportation of non-citizens convicted of aggravated felonies[.]"); 8 C.F.R. § 1240.66 (c)(1) (2018) (providing that a non-citizen is ineligible for special rule cancellation if he or she has an aggravated felony conviction); Susan Pilcher, Justice Without a Blindfold: Criminal Proceedings and the Alien Defendant , 50 Ark. L. Rev. 269 , 329 (1997) ("[A]voidance of an aggravated felony charge will often be of paramount concern, even at the cost of pleading guilty to an arguably more serious crime of moral turpitude, insofar as options for relief from deportation or waivers of future inadmissibility may remain available for the latter."). 5

Further, in 8 U.S.C. § 1158 (b)(2)(A)(ii), Congress has provided that a noncitizen is ineligible for asylum if the Attorney General determines that the noncitizen, "having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States." And through 8 U.S.C. § 1158 (b)(2)(B)(i) (2006), it has provided in addition that "an alien who has been convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime" for the purpose of 8 U.S.C. § 1158 (b)(2)(A)(ii). See Santos-Infante v. Att'y Gen. of the United States , 574 Fed.Appx. 142 , 145 n.2 (3d Cir. 2014) ("An alien convicted of an aggravated felony is considered to have been convicted of a particularly serious crime for purposes of the asylum statute.... Such an alien is ineligible for asylum.").

As I explained in my now-vacated opinion for the Division in this matter, if we are to take potential immigration consequences into account as a measure of the seriousness of an offense in Congress's estimation, I believe it is appropriate to look to whether Congress has at the same time provided avenues of relief whereby individuals convicted of a deportable offense may have the penalty of removal canceled-and, conversely, to whether, as to some deportable offenses, Congress has statutorily shut down all avenues of relief from removal. Congress's harsh treatment of non-citizens convicted of aggravated felonies, admitting of no exceptions, leaves no room for doubt that Congress views these as serious offenses, no matter the status of the offender. In light of the bars to relief from removal for non-citizens who have been convicted of aggravated felonies, I am satisfied that the crimes Congress has designated as falling within this category are offenses for which Congress has mandated statutory penalties that "clearly reflect a legislative determination that the offense[s] ... [are] 'serious' one[s]." Blanton , 489 U.S. at 543 , 109 S.Ct. 1289 .

The parties agree that appellant Bado, a non-citizen, was convicted of an aggravated felony. See 8 U.S.C. § 1101 (a)(43)(A) (defining "aggravated felony" to include "sexual abuse of a minor"). At the time he made his jury demand, it was known that conviction of the crimes with which he was charged (three counts of misdemeanor sexual abuse of a child, in violation of D.C. Code § 22-3010.01 (2001) ) would render him ineligible for cancellation of removal and ineligible for the asylum he was actively seeking before an immigration judge at the time he went to trial in the instant matter. Thus, he was charged with offenses that exposed him to inevitable statutory penalties, an inevitability by which Congress has clearly signaled that it regards the offenses as serious. For that reason, applying the teaching of Blanton , I conclude that Mr. Bado was entitled to a jury trial. 6

One final observation: The rationale I have set out above would afford noncitizens a jury trial when they are threatened almost inevitably with removal from this country (a fate that may be of greater concern to a convicted non-citizen than any jail sentence). It does so, however, without expanding the right to a jury trial to non-citizens in circumstances that (as Senior Judge Washington notes in his concurrence) may be impossible to distinguish from those of our fellow citizens who likely will face severe collateral consequences from misdemeanor convictions, but who, under our statutory and case law, have no right to a jury trial.

For this reason, too, I believe the rationale and result set out above are the most appropriate resolution of the issue presented in this case.

Glickman, Associate Judge, with whom Fisher, Associate Judge, joins, dissenting:

I join Judge Fisher's dissent and wish only to elaborate on one point. In Blanton v. City of N. Las Vegas , the Supreme Court instructed that the Sixth Amendment right to a trial by jury turns on the seriousness of the charged offense in the eyes of the legislature that enacted it, as indicated by the severity of the penalties that legislature chose to attach to the offense. 1 "A defendant is entitled to a jury trial ... only if he can demonstrate" that those penalties-which consist of "the maximum authorized period of incarceration" together with "any additional statutory penalties"-"are so severe that they clearly reflect a legislative determination that the offense in question is a 'serious' one." 2 The views of other legislatures about the seriousness of the offense, and any additional penalties other legislatures impose upon persons convicted of that offense, are irrelevant to whether a particular defendant is entitled to a jury trial in a prosecution for that offense by the jurisdiction that enacted it. 3

The legislature that enacted the offense in the present case-misdemeanor sexual abuse of a minor-was the Council of the District of Columbia. A noncitizen defendant's conviction of that offense exposes him to the revocation of his or her privilege to remain in this country only under federal immigration law-law enacted by Congress. Deportation is a very severe penalty, but it is not a seriousness-defining penalty attached to misdemeanor sexual abuse of a minor by the legislature that enacted the offense. 4 It therefore has no bearing on whether the defendant is entitled to a jury trial in a prosecution for the crime.

Under District of Columbia law, the gravity of misdemeanor sexual abuse of a minor is the same regardless of whether the crime is committed by a citizen or by an alien subject to removal. The maximum penalties that the District of Columbia Council has chosen to impose for commission of this offense by either a citizen or an alien are the same-180 days in prison and a $1,000 fine 5 -and they clearly are not onerous enough by themselves to trigger a right to a jury trial. A defendant convicted of misdemeanor sexual abuse of a minor also is required to register as a sex offender for ten years under the District of Columbia Sex Offender Registration Act ("SORA"). 6 The SORA is "not punitive and does not inflict punishment," 7 however, and this court previously has held that addition of the registration requirement does not render misdemeanor child sexual abuse a jury-demandable offense under the Sixth Amendment. 8 I conclude that appellant did not have a constitutional right to a jury trial in the present case.

Accordingly, for the above reasons (and for the reasons set forth in Judge Fisher's dissent), I respectfully dissent.

Fisher, Associate Judge, with whom GLICKMAN, Associate Judge, joins, dissenting:

According to the majority, a citizen charged with misdemeanor sexual abuse of a child does not have a right to a jury trial, but a noncitizen charged with the very same offense does. This is a startling result, neither compelled nor justified by Supreme Court precedent. It most certainly is not, as the majority asserts, "a straightforward application of a Blanton analysis." Maj. Op. at 1252. Under Blanton , the seriousness of the offense is not measured on a case-by-case basis. Moreover, in my judgment, the prospect of removal (even the certainty of removal) from the United States is not relevant to determining whether the crime is a "serious" offense to which the right of trial by jury applies.

If the maximum term of imprisonment is six months or less, a crime "is presumptively a petty offense to which no jury trial right attaches."

United States v. Nachtigal , 507 U.S. 1 , 4, 113 S.Ct. 1072 , 122 L.Ed.2d 374 (1993). A defendant may rebut this presumption, but "only if he can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a 'serious' one." Blanton v. City of N. Las Vegas , 489 U.S. 538 , 543, 109 S.Ct. 1289 , 103 L.Ed.2d 550 (1989). This will be a "rare situation," the Court observed. Id. Indeed, "there has not yet been a case in which the [Supreme] Court found that an offense with a maximum authorized incarceration period of 6 months was a serious one so as to require a jury trial under the Sixth Amendment." State v. Woolverton , 52 Kan.App.2d 700 , 371 P.3d 941 , 944 (2016).

Under Blanton and related Supreme Court decisions, the right to a jury trial turns on the seriousness of the charged offense in the eyes of the legislature that created it, as indicated by the severity of the penalty authorized and made applicable across the board to anyone who commits it. "In fixing the maximum penalty for a crime, a legislature 'include[s] within the definition of the crime itself a judgment about the seriousness of the offense.' " Blanton , 489 U.S. at 541 , 109 S.Ct. 1289 (quoting Frank v. United States , 395 U.S. 147 , 149, 89 S.Ct. 1503 , 23 L.Ed.2d 162 (1969) ). The seriousness of the offense is not measured on a case-by-case basis by the varying additional consequences an individual defendant might suffer based on his own circumstances unrelated to commission of the crime.

The key question for us-one that the Supreme Court has not addressed-is whether deportation or removal (a consequence imposed by a different legislature) is the type of penalty that counts for purposes of determining the right to a jury trial. I think it does not. Deportation or removal is not part of the criminal penalty. It is, rather, a result (serious, no doubt) of abusing the privilege of living in this country.

We have addressed this question in three previous cases, each time rejecting the argument. Foote v. United States , 670 A.2d 366 , 372 (D.C. 1996) ("[T]he remedies which Foote seeks to treat as criminal penalties could be imposed only in hypothetical civil or administrative proceedings ( e.g. , eviction, forfeiture of assets, deportation or exclusion, driver's license revocation)."); Olafisoye v. United States , 857 A.2d 1078 , 1084 (D.C. 2004) ("[A]dministrative deportation proceedings do not raise an otherwise petty offense to the level requiring a jury trial."); Fretes-Zarate v. United States , 40 A.3d 374 , 374 (D.C. 2012) (post- Padilla decision applying plain error standard of review and rejecting defendant's argument "that she had a constitutional right to a trial by jury for [simple assault] because a conviction subjects her to deportation under federal immigration law"). These decisions do not bind the en banc court, and some of this language may be dictum, but the reasoning is sound.

My colleagues rely much too heavily on Padilla v. Kentucky , 559 U.S. 356 , 130 S.Ct. 1473 , 176 L.Ed.2d 284 (2010), which addressed a claim of ineffective assistance of counsel but said nothing about the right to a jury trial. It is one thing to say (as Padilla did) that a lawyer is required to assist her client in understanding the immigration consequences he will face by pleading guilty (regardless of whether those consequences are called "collateral" or "direct"). It is quite a different matter to conclude that the downstream consequence of deportation transforms a petty offense into a serious one.

Padilla does describe "deportation [as] an integral part-indeed, sometimes the most important part-of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes." Padilla , 559 U.S. at 364 , 130 S.Ct. 1473 (footnote omitted). Nevertheless, the Supreme Court acknowledged, "it is not, in a strict sense, a criminal sanction." Id. at 365, 130 S.Ct. 1473 . That acknowledgment makes all the difference. We should not lose sight of the fact that Padilla did not purport to address the question presented here.

The fact that removal will be a consequence if one is convicted of a certain crime does not mean it is a penalty or punishment that overcomes the presumption that the charge is a petty offense. 1 "Primary emphasis ... must be placed on the maximum authorized period of incarceration." Blanton , 489 U.S. at 542 , 109 S.Ct. 1289 . The operation of this principle is shown in cases of defendants who happen to be on probation (or another form of supervised release) for an earlier offense. Even the predictable consequence of additional incarceration does not count as part of the punishment when determining whether a jury trial is required.

For example, in Brown v. United States , 675 A.2d 953 (D.C. 1996), the defendant's conviction of a new offense led another judge to revoke his probation for a prior conviction, and he was sentenced to serve an additional 120 days in prison. Brown argued that this added punishment entitled him to a jury trial. We rejected that argument, holding that "[t]he fact that this revocation was triggered by the present offense does not make the additional 120 days in prison part of the punishment for this second offense." Id. at 955 . Similarly here, removal may be triggered by the criminal conviction, but that causal link does not make removal part of the punishment for the crime.

It has mattered to us before, and it should matter still, that removal is not part of the criminal process. It is not within the power of the trial judge to impose that consequence. See Foote , 670 A.2d at 370, 372 (pointing out that "these sanctions and remedies [including "exclusion or deportation from the United States"] are not punishment for violations of the drug possession or PDP statutes, and the trial judge had no authority to impose them as part of Foote's sentence"); People v. Suazo , 146 A.D.3d 423 , 45 N.Y.S.3d 31 , 32 ("Despite the gravity of the impact of deportation on a convicted defendant ( see Padilla ...), deportation consequences are still collateral ... and do not render an otherwise petty offense 'serious' for jury trial purposes."), leave to appeal granted , 29 N.Y.3d 1087 , 64 N.Y.S.3d 177 , 86 N.E.3d 264 (2017).

The maximum period of incarceration is not the only relevant penalty, but Blanton requires us to ask whether any "additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a 'serious' one." 489 U.S. at 543 , 109 S.Ct. 1289 . When honoring this command, we must keep firmly in mind that we are dealing here with two different legislatures. The immigration laws are enacted by Congress, while the offense at issue here was created by the Council of the District of Columbia.

Under Blanton's holding, "[t]he judiciary should not substitute its judgment as to seriousness for that of a legislature." 489 U.S. at 541 , 109 S.Ct. 1289 . The government therefore urges us to focus on the penalties assigned by the Council, the legislature which created the offense. See id. at 545 n.11, 109 S.Ct. 1289 (declining "invitation to survey the statutory penalties for drunken driving in other States. The question is not whether other States consider drunken driving a 'serious' offense, but whether Nevada does."). The majority quickly dismisses this important question. 2 But the "same legislature" argument mattered to us in Brown , where the defendant argued that the crime of drug possession was a "serious" offense because federal law punished the equivalent crime by a maximum penalty of one year in prison. We concluded that "[t]he question is not whether some other legislative authority, such as Congress, considers an offense 'serious,' but whether the Council of the District of Columbia does so." Brown , 675 A.2d at 955 . 3

Does the seriousness of the offense vary depending on the identity of the defendant? The Supreme Court has never suggested that it does. To the contrary, the Court has emphasized that the focus must be on the offense charged, "not the particularities of an individual case." Lewis v. United States , 518 U.S. 322 , 328, 116 S.Ct. 2163 , 135 L.Ed.2d 590 (1996). In Lewis , for example, the defendant was charged with two petty offenses and faced a potential aggregate sentence of twelve months' imprisonment. Nevertheless, the Court rejected his claim that he should have been tried by a jury: "Where we have a judgment by the legislature that an offense is 'petty,' we do not look to the potential prison term faced by a particular defendant who is charged with more than one such petty offense." Id. (emphasis in original). 4

To be sure, a recidivist may be entitled to a jury trial when a first offender would not be, but that is because the penal statutes expressly subject him to a longer period of incarceration. In other words, a recidivist is deemed to have committed an aggravated form of the offense-in essence, a different offense with a different maximum sentence.

Apart from being unprecedented, the majority's analysis enormously complicates the practice of criminal law. "Immigration law can be complex, and it is a legal specialty of its own." Padilla , 559 U.S. at 369 , 130 S.Ct. 1473 . The majority's holding signals that issues of immigration law will become the central focus of criminal litigation whenever a noncitizen has been charged with an offense that ordinarily does not require a trial by jury. Trial judges and practitioners of criminal law will have to acquire the expertise to make these judgments. See Suazo , 45 N.Y.S.3d at 32 (finding it "to be highly impracticable ... to analyze the immigration consequences of a particular conviction on the particular defendant"). I would not add this complexity unless convinced that the Supreme Court has required it.

Although the majority chooses not to think about them, Maj. Op. at 1260 n.34, further complications are certain to follow. Defendants inevitably will rely upon the majority's flawed analysis in an effort to distinguish themselves from others charged with the same offense. Will a doctor who stands to lose his professional license if convicted be entitled to a jury trial although a day laborer will not? 5 What about a defendant who may be evicted from public housing or lose (or be denied) other government benefits if he is convicted? 6

A citizen charged with this offense would not be entitled to a jury trial. The answer should be the same for Mr. Bado. I respectfully dissent.