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August 1, 2017

"Prosecutors’ Dilemma: Will Conviction Lead to ‘Life Sentence of Deportation’?"

The title of this post is the headline of this intriguing New York Times front-page article which indirectly highlights the realities and uncertainties of prosecutorial discretion and collateral consequences.  Here are excerpts:

Now that President Trump’s hard line has made deportation a keener threat, a growing number of district attorneys are coming to the same reckoning, concluding that prosecutors should consider potential repercussions for immigrants before closing a plea deal. At the same time, cities and states are reshaping how the criminal justice system treats immigrants, hoping to hopscotch around any unintended immigration pitfalls.

These shifts may inaugurate yet another local-versus-federal conflict with the Trump administration, which is already tussling with many liberal cities over other protections for immigrants. For prosecutors, such policies are also stretching, if not bursting, the bounds of the profession. Justice is supposed to be blind to the identity of a defendant. But, the argument goes, the stakes might warrant a peek.

“There’s certainly a line of argument that says, ‘Nope, we’re not going to consider all your individual circumstances, we want to treat everybody the same,’” said Dan Satterberg, the prosecuting attorney for Seattle and a longtime Republican, who instituted an immigration-consequences policy last year and strengthened it after the presidential election. “But more and more, my eyes are open that treating people the same means that there isn’t a life sentence of deportation that might accompany that conviction.”...

But many prosecutors remain wary, hesitant to meddle in what they regard as the federal government’s business and even more reluctant to depart from what they say is a bedrock principle of the system. “There’s probably hundreds if not thousands of issues that I suppose we could take into consideration,” said Brian McIntyre, the county attorney in Cochise County, Ariz., “and when we do that, we necessarily wind up not being as fair to someone else.”... If he made accommodations for an immigrant, Mr. McIntyre said, he felt that he would also owe a citizen in similar circumstances the same option, “because is he not being, essentially, negatively impacted by his U.S. citizenry?”

A criminal record often has different stakes for an immigrant than it does for a citizen. It can mean losing a green card or being barred from citizenship. Those who lack legal status can lose any chance to gain it. Those with legal status, as well as those without, can face automatic deportation.

In many cases, the city-and-state-level changes dovetail with broader criminal justice reforms that were already underway before Mr. Trump took office. But to the administration, policies that help noncitizens duck immigration penalties are tantamount to an assault on the rule of law. “It troubles me that we’ve seen district attorneys openly brag about not charging cases appropriately under the laws of our country,” Attorney General Jeff Sessions said in April.

The local efforts to help immigrants may not always work. The Trump administration has made clear that anyone without legal status may be deported, regardless of whether they have been convicted of a crime. But reducing criminal penalties can help immigrants by keeping them out of jail, which can make it more difficult for Immigration and Customs Enforcement to find them, or by preserving their options in immigration court....

Prosecutors who take immigration status into account say this consideration will not be extended to serious or violent crimes. They argue that showing flexibility in nonviolent, minor cases will help build trust with immigrants in their communities, making them more likely to report crimes and serve as witnesses. The acting Brooklyn district attorney, Eric Gonzalez, went further than most in April, when he announced that his prosecutors would begin notifying defense lawyers about the potential immigration fallout of their clients’ cases and that he would hire two in-house immigration lawyers to consult on prosecutions.

Days later, the state’s attorney for Baltimore, Marilyn J. Mosby, said she had told her staff members to use their discretion when it came to cases with an immigration factor, considering defendants’ prior records and community ties. “There’s no set standard,” she said. “You have to base it on everything that’s in front of you.”

It is not yet clear what that will look like in Baltimore or Brooklyn. But in Santa Clara County, Calif., whose district attorney was among the first to outline an official policy, prosecutors often allow a noncitizen to plead guilty to a lesser charge in exchange for more jail time or probation. “If we’re giving something, we’re going to get something,” said the district attorney, Jeff Rosen.

California law now requires immigration consequences to be factored into criminal cases. The state has also passed a law allowing people to erase or revise old convictions if they successfully argue that they were not advised at the time that a guilty or no-contest plea would endanger their immigration status.

August 1, 2017 at 05:59 PM | Permalink


Why would any community want to have an immigrant criminal. Being an immigrant and committing a crime is an aggravating factor.

Posted by: federalist | Aug 2, 2017 8:47:03 AM

"California law now requires immigration consequences to be factored into criminal cases." The law mandates that such consequences be considered in plea bargaining by prosecutors.

This law, if mandatory as opposed to aspirational, is very likely a violation of separation of powers and therefore unconstitutional.

Posted by: Eric | Aug 2, 2017 10:25:38 AM

Padilla essentially requires that local prosecutors and local judges understand the immigration consequences of pleas -- either to avoid a later challenge to the plea or to address such a challenge.

Once the immigration consequence is understood, it necessarily becomes part of the bargaining process. A reasonable defendant/defense counsel will try to avoid deportation. That changes the dynamics of plea bargaining. In some cases, that might mean a slight increase in the punishment in exchange for pleading to a lesser offense to avoid triggering deportation. (An alternative offer that might be a "coin flip" for a U.S. citizen -- fewer collateral consequences, but longer punishment -- might be a clearly better offer for a permanent resident who has to consider the additional collateral consequence of deportation.)

Posted by: tmm | Aug 2, 2017 10:47:11 AM

Deport them.

Posted by: federalist | Aug 2, 2017 12:10:56 PM

"Life Sentence of Deportation"

Well really we don't need to read beyond this phrase. It equates a life sentence in prison (the common use of the term "life sentence") with living the entirety of one's life in a non-American country. A beautiful example of American exceptionalism. How would any of us feel if we went to Europe and upon seeing our passport a European said, "you poor thing, condemned to a life sentence in that God forsaken country."

Deportation is no more a life sentence than being born female is a life sentence. It is mischievous and cruel to suggest that it is.

Posted by: Daniel | Aug 2, 2017 12:40:58 PM


I think that your comment is correct. That's not my objection. I totally understand why some defendants will do anything to avoid deportation but a defendant's subjective desire to avoid deportation in their individual case doesn't turn deportation into a heinous act as a matter of public policy. Satterberg is arguing that because he objects to deportation as a matter of policy, he should give more weight immigration concerns in specific cases than he otherwise would. That's fair enough and within the bounds of prosecutor discretion. I believe, however, that his objection to deportation as a matter of policy makes him an arrogant, spiteful SOB.

Posted by: Daniel | Aug 2, 2017 12:50:25 PM

The "equalization" is more a matter of inference than implication.

The "life sentence" here means in this context they are being sentenced to a life of away from the country. Doesn't mean each "life sentence" is the same, be it prison or this. Nor does is the concern merely that the U.S. is the country at issue. The article ends with an example of a woman that was liable to leave the country she knew all her life, except as a toddler. Not the U.S. as if we are uniquely precious.

Finally, deportation can be burdensome to third parties (including citizen children) and deprive society of certain useful members. A zero tolerance policy here is pragmatically ill advised.

Posted by: Joe | Aug 2, 2017 1:19:31 PM


I don't agree that Padilla essentially requires local prosecutors and judges understand the immigration consequences of a plea. It requires defense attorneys to know them.

Because CA law prohibits the courts asking the immigration status of an offender, they are in no position to know regardless.

Posted by: Eric | Aug 2, 2017 1:52:18 PM


By all means, let's keep this DREAMER.

"deprive society of certain useful members"--yeah, maybe once in a blue moon, but immigrant criminals are not my idea of "useful members"--they can all live near Joe.

Posted by: federalist | Aug 2, 2017 2:08:39 PM

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