Guest blogger Thea Johnson, Associate Professor of Law, University of Maine School of Law, teaches criminal law and procedure….

Since the election of Trump, there has been an interesting trend among prosecutors in the U.S. to resist the growing reach of federal immigration law in their own jurisdictions.

A host of criminal convictions, including for very minor offenses, make a non-citizen deportable under immigration law. Mindful of this, a number of prosecutors have made promises to consider the immigration consequences of their decisions within the criminal system. Recently, and certainly since Trump’s election, there have been an increasing number of district attorneys’ offices announcing new policies regarding non-citizen defendants.

In Brooklyn, for instance, the district attorney has instituted a policy to limit immigration consequences for defendants facing low-level offenses. In Baltimore, the Chief Deputy State’s Attorney sent a memo to his staff informing them that the Justice Department’s deportation efforts under Trump “have increased the potential collateral consequences to certain immigrants for minor, non-violent criminal conduct.” As a result, he directed the attorneys, “In considering the appropriate disposition of a minor, non-violent criminal case, please be certain to consider those potential consequences to the victim, witnesses, and the defendant.” This seems to be in line with a trend of progressive prosecutors who are promising to reduce incarceration and take police violence seriously.

​This leaves an interesting opening for defense attorneys who want to negotiate around the collateral consequences, particularly the immigration consequences, of a conviction. As I document in my article, Measuring the Creative Plea Bargain, 92 Ind. L. J. 901 (2017), defense attorneys are increasingly thinking about how to meet specific client needs, including the desire to avoid certain collateral consequences. Indeed, what I heard from many defense attorneys is that clients may value avoiding, say, sex offender registration or the possibility of deportation more than they value getting the lowest possible sentence. This new vision of what constitutes a “good plea” leads to plea bargains that may look bad on paper, but are meeting the client’s particular goal in the case.

For instance, one defense attorney told me about a client who was charged with a sex offense and was facing the prospect of lifetime sex offender registration as part of his initial plea offer. The client’s primary goal was to avoid registration. For that reason, he was willing to accept a plea to a higher charge (in this case, attempted murder) with significant additional prison time. On paper, the final plea looks worse than the original plea offer – both a higher charge and higher sentence than what was initially on the table. But that final plea is satisfying the more pressing client need. In an article in Vox entitled, “I’m a public defender. My clients would rather go to jail than register as sex offenders,” Rachel Marshall, a public defender in California, has written about this trend in her own practice.

In the context of immigration consequences this sort of trading is even more common, especially at the misdemeanor level. Many misdemeanor convictions still pose serious deportation risks, but the defenders I spoke to found that the latitude for negotiating is broader with misdemeanors than felonies. Partly, this is because misdemeanors generally carry shorter sentences and more options for alternatives to incarceration, such as community service, short treatment programs, fines or probation. As a result, one common tactic is for defense attorneys to request “immigration-safe” pleas in exchange for loading up the penalty with one or more of these alternatives. In New York, a disorderly conduct violation is frequently used as an immigration-safe disposition. The two sides then negotiate over the appropriate sanction to attach to the violation.

At the felony level, the sentences are generally heavier than at the misdemeanor level. As a result, defenders reported that sentence reduction tends to be the greater concern for the client facing a felony charge – but not always. Many defenders told me about how clients were willing to trade more prison/jail time, more serious charges or both to avoid any plea that threatened their immigration status.

In addition, at the felony level, where it is more common for a judge to ask for a recitation of the facts underlying the plea, defenders told me about their attempts to “sterilize” the record. This method involves carefully crafting the factual record to avoid any references to criminal behavior that might prove problematic in later immigration proceedings.

Defense attorneys also try to figure out if there is a different state of mind requirement to which the defendant can plead guilty. A defender might negotiate a plea to a “reckless” rather than “intentional” state of mind within the same statute, as “intentional” criminal acts are more often covered by immigration law.

​But as I heard from nearly all the defense attorneys I spoke to, this sort of negotiation is limited by the receptiveness of the opposing district attorney. This is what makes the new trend discussed above so interesting. As prosecutors become more open to negotiating around collateral consequences – either through formal office policies, laws that mandate such openness, or personal preference – defense attorneys may be able to employ these techniques with greater frequency. The creative plea bargain may become both more useful and more used as criminal justice actors attempt to limit the reach of non-criminal sanctions that flow from convictions.



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