Scholars Sidebar: Does Padilla affect prosecutors?

By University of Denver Sturm College of Law
Sep 25, 2012

A new article proposes that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), is more than just a decision for criminal defense attorneys: it requires prosecutors to consider immigration consequences of conviction too. Heidi Altman, Prosecuting Post-Padilla: State Interests and the Pursuit of Justice for Noncitizen Defendants, 101 Georgetown Law Journal – (forthcoming 2012). Altman, a fellow at Georgetown Law, argues that prosecutors can’t effectively meet their professional and ethical obligations without considering how a conviction might affect a defendant’s immigration status.

The central basis of Altman’s claim rests with Justice Stevens’s majority opinion in Padilla. There the Court explained that “[i]nformed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process.” Padilla, 130 S. Ct. at 1486. Altman unpacks this discussion in light of the prosecutorial goals and objectives issued by the American Prosecutors Research Institute, the National District Attorneys Association’s research unit. Altman at 6, 26.

Considering the immigration consequences of conviction, Altman argues, would further the three goals APRI highlights: pursuing justice, ensuring community safety, and maintaining integrity in the prosecution profession. Altman at 26. Justice is served, Altman claims, by taking into account the big picture impact of conviction rather than the outcome of an individualized proceeding. This is true in part because noncitizen defendants are denied the opportunity to participate in alternative sentencing programs due to their immigration status and also because a conviction can lead to further imprisonment and removal for many noncitizens—effects that are not permissible for United States citizens (though they do occur with alarming frequency). Altman at 26-29. Focusing only on the sentencing outcome of conviction fails to consider these goals, which to many noncitizen defendants are highly important, as the Padilla Court recognized. Padilla, 130 S. Ct. at 1481-82.

Altman then argues that a thorough concern for immigration consequences promotes community safety because removal affects the defendant’s family and community. These individuals, Altman points, are left behind in the wake of an immigration action, often without the financial ability to maintain themselves and, obviously, suffering from the emotional toll of having had a loved one forcibly removed from their lives. Altman at 34-36.

Lastly, Altman argues that accounting for immigration consequences builds integrity into the prosecution profession because it allows prosecutors to take a more comprehensive view of the impact of their work. Altman at 39.

What I find most interesting about Altman’s article is her claim that prosecutors can protect the finality of convictions by putting immigration consequences front and center in the plea negotiations. This is the exact opposite of what many critics have written about Padilla; they claim that Padilla allows untold numbers of convicted individuals to relitigate their claims simply because they’re suffering immigration consequences as a result. Indeed, the U.S. Solicitor General and Kentucky argued as much in Padilla. Padilla, 130 S. Ct. at 1484-85.

Altman convincingly argues that “the most effective way for prosecutors to protect the finality of bargained-for dispositions in cases involving immigration penalties is to directly engage with those penalties during plea bargaining and to offer immigration-neutral dispositions when appropriate.” Altman at 30. That is, there’s no better way to protect the outcome than to put all the cards on the table and let the parties weigh their options fully informed of the consequences.

This strikes me as true. By making sure that immigration considerations are a core aspect of plea negotiations, the prosecutor can ensure that the defendant and defense attorney engage in a frank conversation of the available options such that the defendant won’t later have legitimate reason to claim that the immigration consequences came out of nowhere. In effect, prosecutors can make sure that defense attorneys meet their Sixth Amendment obligation to defendants, thereby avoiding the possibility of a vacated conviction later based on ineffective assistance.

Altman’s article is one of the first to address how Padilla affects prosecutors and the first that I know of to do so in such detail. She’s started the conversation well.