Criminal Defense of Immigrants
§ 8.16 1. The Prosecutor
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The role of the prosecution in plea bargaining is very powerful. The prosecutor, however, unlike the defense, need not satisfy a separate “client.” Defense counsel can appeal to the prosecutor’s fairness and use any factor the prosecutor believes may legitimately influence the exercise of prosecutorial discretion.
 D. Rossman, Criminal Law Advocacy: Guilty Pleas § 8.03 (1983); Alschuler, The Prosecutor’s Role in Plea Bargaining, 36 U. Chi. L. Rev. 50 (1968); Note, Guilty Plea Bargaining: Compromise by Prosecutors to Secure Guilty Pleas, 112 U. PA. L. Rev. 865 (1964).
REMOVAL - ENFORCEABILITY OF FEDERAL PROSECUTOR'S PROMISE NOT TO DEPORT
Morgan v. Gonzales, __ F.3d __, 2007 WL 2127707 (9th Cir. Jul. 26, 2007) (United States is not estopped from removing an aggravated felon based on governments alleged agreement not to deport him in exchange for his cooperation in a federal drug prosecution where there was no claim that an official having the authority to do so made a specific promise of such relief).
POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL "PROSECUTION ENCOURAGED TO CONSIDER IMMIGRATION CONSEQUENCES IN PLEA BARGAINING
Although Padilla does not require prosecutors to consider immigration consequences, it certainly encourages them to consider such consequences during plea negotiations. The decision states that informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea- bargaining process. Padilla, 2010 U.S. LEXIS at *30. The Court recognized that immigration consequences often stem directly from criminal convictions, and are often even more important to a defendant than the criminal sentence he faces. Id. at *21. In light of the Padilla decision, defense counsel should encourage prosecutors to consider the immigration consequences to noncitizen clients during plea negotiations.