ARTICLE
PROSECUTORIAL DUTY TO NEGOTIATE IMMIGRATION CONSEQUENCES

By Norton Tooby

In Padilla v. Kentucky, the Supreme Court held that it is frequently in the interests of both prosecution and defense to include immigration consequences of a plea in the plea bargaining process, implying that there is nothing wrong with this, and much to be gained from it. The Court stated:

Finally, informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties. As in this case, a criminal episode may provide the basis for multiple charges, of which only a subset mandate deportation following conviction. Counsel who possess the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation, as by avoiding a conviction for an offense that automatically triggers the removal consequence. At the same time, the threat of deportation may provide the defendant with a powerful incentive to plead guilty to an offense that does not mandate that penalty in exchange for a dismissal of a charge that does.

Padilla v. Kentucky, 559 U.S. ___, 130 S.Ct. at 1486. The Court convincingly rejected the notion that it is somehow improper to reach a disposition that consciously averts an immigration disaster for the defendant.

Prosecutors sometimes argue that it would violate Equal Protection to give a more favorable disposition to an immigrant defendant than to a U.S. citizen. This argument cannot stand in the face of the Supreme Court's analysis.

Many prosecutors agree that it is appropriate to bargain for an immigration-harmless disposition in appropriate cases. For example, the Los Angeles District Attorneys Office, one of the largest in the country, has published a Plea Bargaining Policy that includes authority to plea bargain for an immigration harmless result where the immigration consequences outweigh the criminal consequences in light of the seriousness of the case. http://da.co.la.ca.us/sd03-04.htm.

A number of publications recognize the prosecutors duty to consider immigration consequences when raised by a defendant in the context of plea negotiations. E.g., Robert M.A. Johnson, Collateral Consequences, Message from the President of the National District Attorneys Association, May-June 2001 (Our job, our duty, is to seek justice. . . . [W]e must consider them [collateral consequences] if we are to see that justice is done. . . . . At times, the collateral consequences of a conviction are so severe that we are unable to deliver a proportionate penalty in the criminal justice system without disproportionate collateral consequences. . . . As a prosecutor, you must comprehend this full range of consequences that flow from a crucial conviction.); National District Attorneys Association (NDAA Standards) , National Prosecution Standards, Std 1-1.1, Prosecutors Primary Responsibility (3rd ed. 2009) (The primary responsibility of a prosecutor is to seek justice.); NDAA Standards, Std. 2-8.3 (The prosecutor should cooperate with defense counsel at all stages of the criminal process to ensure the attainment of justice and the most appropriate disposition of each case.); NDAA Standards, Std. 4-1.3 (Prosecutors should screen potential charges to eliminate from the criminal justice system those cases where prosecution is not justified or not in the public interest. Factors that may be considered in this decision include: . . . k. Undue hardship that would be caused to the accused by the prosecution; . . . p. Whether the accused has already suffered substantial loss in connection with the alleged crime); NDAA Standards, Std. 5-3.1, Propriety of Plea Negotiation and Plea Agreements (Factors to Consider. Prior to negotiating a plea agreement, the prosecution should consider the following factors: . . . g. Undue hardship caused to the defendant; . . . . l. The probable sentence if the defendant is convicted); ABA Standards of Criminal Justice, Prosecution Function, Standard 3-1.2, The Function of a Prosecutor (3d. ed. 1999) ((b) The prosecutor is an administrator of justice, an advocate, and an officer of the court; the prosecutor must exercise sound discretion in the performance of his or her functions. (c) The duty of the prosecutor is to seek justice, not merely to convict.); ABA Standard 3-1.2, Commentary, p. 5 ( Since the prosecutor bears a large share of the responsibility for determining which cases are taken into the courts, the character, quality, and efficiency of the whole system is shaped in great measure by the manner in which the prosecutor exercises his or her broad discretionary powers.); ABA Standards of Criminal Justice, Prosecution Function Standard 3-3.9 Discretion in the Charging Decision, Commentary, p. 74, (3d. ed. 1999) (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.). See generally http://www.ethicsforprosecutors.com/quotes.html. This site was established by a prosecutor's organization.

As the Supreme Court stated long ago, as the Constitution has been construed in our cases, it is not forbidden to extend a proper degree of leniency in return for guilty pleas. Corbitt v. New Jersey, 439 U.S. 212, 223, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978).