Criminal Defense of Immigrants

(C)  Prosecution Duty to Seek Non-Conviction Dispositions Where Appropriate.  Modern criminal procedure favors non-conviction dispositions for many minor offenses, where the client has no prior convictions, because they are cheaper, easier, and allow the client to retain a “clean” record if s/he is able to avoid future tangles with the law.  Prosecutors should always consider whether a noncriminal disposition should be entered in an individual case, and they enjoy discretion to allow such dispositions where appropriate. 

            The prosecutor should consider in appropriate cases the availability of noncriminal disposition, formal or informal, in deciding whether to press criminal charges which would otherwise be supported by probable cause; especially in the case of a first offender, the nature of the offense may warrant noncriminal disposition.[151]

Many prosecutors have deferred prosecution in minor, first-offense cases, upon fulfillment of certain conditions, such as obtaining psychiatric assistance, entering the military service, obtaining new employment, or entry into a chemical dependency treatment program. [152]  Many of these dispositions do not constitute convictions under immigration law.  See § 7.30, supra.

[151] ABA Standards for Criminal Justice on the Prosecution Function, Standard 3-3.8(a) (1993). 

[152] ABA Standards for Criminal Justice on the Prosecution Function, Commentary to Standard 3-3.8(a), p. 70 (1993).