Some Prosecutors Offer Plea Deals to Avoid Deportation of Noncitizens
Proponents say the policy protects some immigrants from harsher consequences than others for minor convictions, but critics call it unethical
Acting Brooklyn District Attorney Eric Gonzalez is among those prosecutors looking to minimize the immigration impacts of convictions.PHOTO: THEODORE PARISIENNE/PRESS POOL
For noncitizens, minor crimes like shoplifting can result in deportation. But a growing number of district attorneys say they offer immigrants accused of crimes plea deals to help them avoid that fate.
The prosecutors, including at least six in jurisdictions on the East and West coasts, purposely avoid reaching plea agreements or sentences that might trigger a noncitizen’s deportation or prevent his or her re-entry into the country. It is an arrangement that proponents say protects some noncitizen immigrants from the disproportionate consequences of minor convictions, but critics, including U.S. Attorney General Jeff Sessions, contend is unethical because it treats citizens and noncitizens differently.
These local prosecutors, who have significant discretion in how they charge crimes, say they are also promoting public safety by courting immigrant constituents’ trust. “I saw what were, in my opinion, many miscarriages of justice,” said Acting Brooklyn District Attorney Eric Gonzalez, of immigrants deported as the result of low-level convictions. His office recently adopted a policy of considering and trying to minimize the immigration impacts of convictions and hired two immigration attorneys to train his staff.
Santa Clara County District Attorney Jeff Rosen says he was criticized when his district first adopted the policy, but he rarely gets such comments now as the policies have become more commonplace. PHOTO: PAUL SAKUMA/ASSOCIATED PRESS
One of his inspirations, he said, was a Brooklyn man arrested for being unescorted in an apartment building. At the precinct, police officers discovered the man had a small amount of crack cocaine. In court, the man, a green-card holder from Haiti, pleaded guilty to drug possession. When he tried to come home after visiting Haiti, border officials wouldn’t let him return.
Under the new policy, prosecutors might have offered the green-card holder a trespassing plea, which wouldn’t have triggered immigration problems, instead of drug charges, which typically do.
Critics say such policies are unfair. Speaking on Long Island in April, Mr. Sessions said, “It troubles me that we’ve seen district attorneys openly brag about not charging cases appropriately under the laws of our country, so that provides an opportunity for individuals not to be convicted of a crime that might lead to deportation.”
Tom Fitton, president of conservative foundation Judicial Watch, called such policies “dangerous and arguably unconstitutional.”
“You don’t give people special treatment for prosecutorial decisions based on country of origin or immigration status,” Mr. Fitton said. “The logic here is American citizens might be prosecuted more harshly for the same crimes.”
Until this year, the approach of different charges for noncitizens was largely a California phenomenon. The San Francisco district attorney has no official policy but for at least a decade has offered some noncitizens pleas that help them avoid deportation, according to a spokesman.
In 2011, the Santa Clara County District Attorney’s Office released a policy of taking immigration consequences into account. District Attorney Jeff Rosen said he was prompted by his own plea-negotiating experience, during which defense attorneys would ask for pleas that would help immigrants, many of whom were longtime residents with families, avoid deportation.
After the policy came out, “I heard from colleagues, ‘You’re a Bay Area hippie liberal,’” Mr. Rosen said. He disputed the characterization—“I’m married and drive a gray Camry,” he said. But now he rarely gets such comments because such policies are more commonplace in California.
Other California prosecutors offices followed. Alameda County, which includes Oakland, issued guidelines in 2012 instructing prosecutors to consider immigration consequences for lesser crimes.
Back east, the Baltimore City State’s Attorney’s Office in April told employees to consider immigration consequences when prosecuting low-level, nonviolent crimes. Last month, the office held a mandatory training session for prosecutors on how certain pleas affect noncitizen defendants, State’s Attorney Marilyn Mosby said.
Also this year, the Manhattan district attorney’s office, which has no official policy, created a yet-unfilled position dubbed the Collateral Consequences Counsel.
“I submit today that if two New Yorkers commit the same low-level violation, and the practical consequence for one of the New Yorkers is a ticket or a couple of days in jail, while the consequence for the other New Yorker is to be taken from her family and shipped off to a foreign country, that is not equal justice under law,” District Attorney Cyrus Vance Jr. said in May.
Approaches to such policies differ. In Santa Clara County, someone who pleads to a lower charge often gets a stiffer sentence. A noncitizen accused of shoplifting whose charge is reduced from petty theft to “trespass to interfere with business” might get extra time in a work program.
The office estimates it modifies a plea or sentence for immigration reasons from 300 to 400 times a year, or in less than 1% of total cases, Mr. Rosen said.
The policy had been largely uncontroversial until April, when a public outcry followed an article in online publication the Daily Beast about a case in which an Indian green-card holder was accused by his wife, a citizen, of domestic violence. “Please don’t do this,” the wife, an engineer, cries repeatedly in a video she recorded on her iPhone, followed by smacking sounds in the background.
Santa Clara prosecutors charged the man, also an engineer, with two counts of felony domestic violence, which could have resulted in his deportation. He later pleaded to lesser charges of felony accessory and misdemeanor domestic battery.
“They should have just charged him with what he did,” said Michael Pascoe, an attorney for the woman.
Michael Paez, an attorney for the man, said the evidence against his client was inconsistent. Mr. Rosen said that although immigration status was one factor in the plea agreement, prosecutors were concerned they lacked the evidence to prove the initial charges at trial.
Some offices with such policies say such discretion isn’t limited to immigration, and they consider the effects of pleas on other circumstances, like employment or ability to attend college.
Such policies are likely to continue to be subjects of discussion at prosecutors’ offices nationwide.
In Denver, District Attorney Beth McCann weighed adopting a policy of considering immigration consequences but struggled with concerns that it wouldn’t apply justice fairly, a spokesman said.
“Why would you treat an undocumented member of the community better than an American citizen?” said the spokesman, Ken Lane. “She hasn’t resolved that issue in terms of a formal policy.”
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