Criminal Defense of Immigrants


§ 8.16 (A)

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(A)  Prosecutorial Discretion.  The prosecutor’s discretion is very broad. [39]


He is given extraordinarily broad discretion in deciding whether to prosecute and what charges to bring, and this discretion is not subject to judicial intervention so long as the charges brought are based on probable cause and the prosecution is not facially discriminatory.  This broad power to prosecute includes the power to dismiss or nolle prosequi (or “nol pros”) and to plea bargain.[40]


“The prosecutor is not obliged to present all charges which the evidence might support.  The prosecutor may in some circumstances and for good cause consistent with the public interest decline to prosecute, notwithstanding that sufficient evidence may exist which would support a conviction.”[41]  The Commentary to the ABA Standards on the Prosecution Function states: “The breadth of criminal legislation necessarily means that much conduct that falls within its literal terms should not always lead to criminal prosecution. . . .  A prosecutor should adopt a ‘first things first’ policy, giving greatest attention to those areas of criminal activity that pose the most serious threat to the security and order of the community.”[42]  The Commentary continues:


Nor is it desirable that the prosecutor prosecute all crimes at the highest degree available.  Crimes are necessarily defined in broad terms that encompass situations of greatly differing gravity.  Differences in the circumstances under which a crime took place, the motives behind or pressures upon the defendant, mitigating factors in the situation, the defendant’s age, prior record, general background, and role in the offense, and a host of other particular factors require that the prosecutor view the whole range of possible charges as a set of tools from which to carefully select the proper instrument to bring the charges warranted by the evidence.[43]


Therefore, counsel can properly argue that the immigration consequences of the case constitute part of the “mitigating factors in the situation,” and that the prosecutor should consider the defendant’s immigration status as part of the defendant’s “general background . . . and . . . host of other particular factors” that can motivate a reasonable prosecutor not to seek conviction “at the highest degree available.”[44]


[39] D. Rossman, Criminal Law Advocacy: Guilty Pleas § 8.03[1] (1983).

[40] G. Herman, Plea Bargaining § 3:02, pp. 14-15 (2d ed. 2004) (footnotes omitted).

[41] ABA Standards for Criminal Justice on the Prosecution Function, Standards 3-3.9(b) (1993).

[42] ABA Standards for Criminal Justice on the Prosecution Function, Comment to Standard 3-3.9(b), p. 73 (1993). 

[43] ABA Standards for Criminal Justice on the Prosecution Function, Comment to Standard 3-3.9(b), p. 73 (1993).

[44] Ibid.



Ninth Circuit

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).


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.