Alameda County District Attorneys Office, Guidelines Regarding the Consideration of Collateral Immigration Consequences During Plea Negotiations 1 (Oct. 8, 2012) (Because the Supreme Court recognized and indeed encourages the consideration of collateral consequences, this ruling puts to rest earlier arguments that this would be somehow illegal or improper (e.g., a violation of separation of powers or equal protection principles).).

[I]t is appropriate to consider collateral consequences associated with a conviction when seeking to arrive at a just resolution of a criminal case.

1) When it would be just to do so, it is appropriate to consider the collateral consequences (including potential immigration consequences) of a criminal conviction during the plea negotiation process. This sort of analysis will necessarily be fact specific and require consideration of a variety of relevant factors. There is no specific formula that can be applied in every case.

2) It is generally considered appropriate to offer an accommodation if the collateral consequences are disproportionate to the crime and sentence being discussed.

a) In other words, consideration of collateral consequences is not typically appropriate in serious or violent felony cases (especially those resulting in a lengthy sentence).

b) On the other hand, it would be typically appropriate to consider collateral consequences when dealing with less serious crimes (with shorter sentences).

3) If the consideration of collateral consequences is deemed appropriate and some mitigating modification of an offered plea agreement is suggested, it is also appropriate to require some form of concession by the defendant (to make the resolution roughly equivalent to an offer made to a U.S. citizen). Examples would include more custody time or a longer period of probation.

4) Given the complexity and evolving nature of immigration law, it is difficult for any individual prosecutor to determine the truth of defense assertions regarding potential collateral consequences. It can be assumed, however, that if a defendant is willing to endure a more onerous sentence in return for a modification of the offered plea agreement, then the feared consequence is authentic.

5) These guidelines are not intended to limit the discretion of individual prosecutors.

6) The decision to factor in collateral consequences should be openly made and noted in the file.

a) A corollary of this is that when collateral consequences are considered and any modification of an offer is rejected as inappropriate, that fact should be made part of the record.

7) These guidelines are not intended to create a new procedural right in favor of criminal defendants or be enforceable in a court of law.

8) If there are any questions regarding whether these guidelines are applicable to any specific situation or how they should be applied, the prosecutor handling the case should consult with his or her supervisor.