Safe Havens

 

To prepare for negotiations with the prosecution, it is wise to prepare talking points in addition to an exact description of the elements of the target disposition that is necessary to protect the client against deportation.  As an aid to brainstorming, consider the following sample dialogue:

 

Defense Counsel:  About the Malo Suerte case, did you get my settlement proposal?

 

Prosecutor:  Yeah.

 

DC:  What did you think of the snapshot of his family?

 

P:  Pretty hokey.

 

DC:  Yes, but it sets him aside from the run of the mill defendant.  How about the petition signed by 200 of his friends, neighbors, and members of his church?

 

P:  We can’t pay any attention to that.  This is not a popularity contest.

 

DC:  That’s true, but how bad a guy can he be with all that community support?  You know, at sentencing, I can argue numerous reasons for a sentence under 365 days:  (1)  He has never been arrested before, (2)  he has a completely clean record, (3) this is his first offense . . ..

 

P:  Those are all the same reason.

 

DC:  Yes, but it really distinguishes him from most of the little rascals that we deal with.  The most important issue for him and his family is for him to avoid deportation.  It’s way out of proportion to his crime for him to suffer a lifetime of banishment away from his family and his home of 25 years.

 

P:  We can’t treat him any differently than anyone else.

 

DC:  I understand that and I agree: we shouldn’t deport him since we don’t deport anyone else.

 

P:  We’re not deporting him.  The INS is deporting him, and we don’t have any control over that.

 

DC:  Actually, we do.  If we give him a sentence of 364 days or less, no one will deport him.  If we give him a sentence of one year or more, we trigger his deportation.

 

P:  That’s a collateral consequence.  The court doesn’t have to take that into consideration at the time of plea, and neither do we.

 

DC:  That may be true, but it’s a mandatory consequence.  It’s absolutely certain to happen.  And we can certainly take it into account in plea bargaining.  As a prosecutor, you are free in your discretion to take into account the entire situation in fashioning an appropriate disposition.  I don’t think you really mean you will pretend something as huge as permanent banishment is not happening.

 

P:  We have a policy not to interfere with Congress’ decisions on whom to deport.

 

DC:  Congress only has a policy to deport people who receive a sentence of one year or more.  If Mr. Suerte receives a lesser sentence, Congress does not feel he should be deported.  We are free to take all the circumstances of the case into account in deciding what sentence to give.  It’s not only him, but his innocent family and friends who will suffer if he is deported.  His kids will lose all child support; and his wife will either lose her husband, or she will be deported too, even though she hasn’t done anything.  Give her a break.  Give the kids a break.  We have to take care of the children.

 

P:  This is a prison case; under our policies, he should receive a two-year sentence.

 

DC:  We can give him the same actual time in custody as he would serve under a two-year prison sentence.  We’ll waive his six months presentence credits, and we’ll waive post-sentence credits.  On a sentence of 360 days in jail, with no credit for time served, he’ll serve even more actual time than he would on a two-year prison sentence.  And you have a better than normal deterrent to future violations, since he knows if he violates probation and receives even five more days in custody, he’ll be deported forever.  The public is amply protected.

 

P:  Oh, all right.