Guidelines Regarding the Consideration of Collateral
Immigration Consequences During Plea Negotiations
October 8, 2012
Many prosecutors have not historically considered the potential immigration
consequences of a criminal conviction when engaging in plea negotiations. Over the
past few years, however, such collateral consequences have become more extensive,
inflexible and potentially harsh when compared to the gravity of some charged
The United States Supreme Court has recently noted in Padilla v. Kentucky, 130
S.Ct. 1473 (2010), that immigration consequences resulting from criminal convictions
can be substantial and warrant consideration by both the prosecution and the defense.
The Court held that it was inadequate assistance of counsel for a defense attorney to
neglect to advise a criminal defendant of the potential for deportation as the result of a
guilty plea. The opinion clearly anticipates that this immigration consequence will be
considered during plea negotiations, noting:
... [I]nformed consideration of possible deportation can only benefit
both the State and noncitizen defendants during the plea-bargaining
process. By bringing deportation consequences into this process, the
defense and prosecution may well be able to reach agreements that
better satisfy the interests of both parties. As in this case, a criminal
episode may provide the basis for multiple charges, of which only a
subset mandate deportation following conviction. Counsel who possess
the most rudimentary understanding of the deportation consequences of a
particular criminal offense may be able to plea bargain creatively with the
prosecutor in order to craft a conviction and sentence that reduce the
likelihood of deportation, as by avoiding a conviction for an offense that
automatically triggers the removal consequence. At the same time, the
threat of deportation may provide the defendant with a powerful incentive
to plead guilty to an offense that does not mandate that penalty in
exchange for a dismissal of a charge that does. (130 S.Ct. at 1486.)
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
As the law has evolved in this area, it has become apparent that it is appropriate
to consider collateral consequences associated with a conviction when seeking to arrive
at a just resolution of a criminal case. To that end, these broad guidelines are offered
as a guide to what might be appropriate for individual prosecutors to consider when
conducting plea negotiations.
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
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
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.
Office of the District Attorney
To: Fellow Prosecutors
From: Jeff Rosen, District Attorney
Date: September 14,2011
Re: Collateral Consequences
As I discussed earlier in team meetings with all of you, the PPM has been modified to allow for the
consideration of collateral consequences in appropriate cases. The following memo is designed to assist in
the implementation of this policy.
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Section 5.02(b)(x)(6) Collateral Consequences
The highest duty of the prosecutor is to ensure that both the charges and ensuing
punishment fit the crime. Collateral consequences are the inevitable product ofcriminal
behavior. It is not generally the duty of a prosecutor to mitigate the collateral consequences
to a defendant of his or her crime. However, in those cases where the collateral
consequences are significantly greater than the punishment for the crime itself, it is
incumbent upon the prosecutor to consider and, ifappropriate, take reasonable steps to
mitigate those collateral consequences. If a defendant is charged with a serious or violent
felony pursuant to Penal Code §667.5, any modification due to alleged collateral
consequences is presumptively inappropriate. In those cases where a prosecutor mitigates
either a charge or sentence in order to ensure a just resolution, the prosecutor should ensure
that the totality ofthe resolution remains equitable with that offered to other similarly
situated defendants. In other words, the facts ofeach case must be carefully evaluated to
ensure equality and justice. If a significant change is contemplated, this should be discussed
with the prosecutor's SuDDa. It is important to note that there are legal restrictions on a
prosecutor's right to negotiate certain types of offenses. (Penal Code section 1192.7) We
shall act within the bounds of those limitations.
The core duty of any prosecutor, the most central mission of our office, is the pursuit ofjustice. This
is not an easy job. We must prosecute the guilty, protect the innocent, and make sure the punishment fits the
One school ofthought is that a prosecutor need not concern her or himself with any consequences
that are not intrinsic in the statutory punishment itself In other words, some might argue that if the statutory
punishment fits the crime, then our duty is discharged and we can, in fact should, ignore the actual
consequences ofthe sentence. Historically this view made some sense for as a practical matter, there were
relatively few collateral consequences that resulted from a guilty plea. However, it is now widely
acknowledged that collateral consequences have become much more pervasive, burdensome and harder to
avoid or mitigate. Collateral consequences can now range, for example, from the loss ofeducational
opportunities, financial assistance from the state, public housing, the ability to practice many trades or
professions. Furthermore, collateral consequences often have the greatest impact on the innocent family
members and children ofa defendant. Ofcourse, the recent U.S. Supreme Court case of Padilla v. Kentucky
130 S.Ct. 1473 (2010), ruled that collateral immigrations consequences ofa conviction for a non-citizen can
be profound and warrant direct consideration by both the prosecution and defense.
Accordingly, a dominant paradigm has emerged - prosecutors should consider both collateral and
direct consequences ofa settlement in order to discharge our highest duty to pursue justice.
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For example, Supreme Court Justice Anthony Kennedy addressed the ABA in 2003 with these
When someone has been judged guilty and the appellate and collateral review process has
ended, the legal profession seems to lose all interest. When the prisoner is taken away, our
attention turns to the next case. When the door is locked against the prisoner, we do not
think what is behind it. We have a greater responsibility.!
Justice Kennedy then went on to address at length the crucial importance ofprosecutors in particular
considering the practical and real world effects of a given settlement. Less this is mistaken for some overly
tender-hearted sentiment; in each case limiting the impact of collateral consequences is reserved for those
circumstances where the impact ofthe collateral consequence is unjustified.
In other words, the goal of limiting the unjust impact ofa collateral consequence is not a blanket
goal of eliminating collateral consequences in all cases. Frequently, a collateral consequence is perfectly
consistent with the just resolution ofthe case.
Robert Johnson, former president ofthe National District Attorneys Association, wrote in 2007:
Our job, our duty is to seek justice. How can we ignore a consequence ofour
prosecution that we know will surely be imposed by the operation oflaw? ..... These
collateral consequences cannot easily be changed or bargained away when justice requires
them. But we must consider them if we are to see that justice is done. ... As a prosecutor,
you must comprehend this full range ofconsequences that flow from a crucial conviction. If
not, we will suffer the disrespect and lose the confidence of the very society we seek to
As mentioned earlier, we are all familiar with last years U.S. Supreme Court case of Padilla v.
Kentuck/. Intrinsic to the Padilla decision is the constitutionality of considering collateral consequences
when crafting a settlement. In other words, the court ruled that it was IAC for a defense counsel to fail to
advise and negotiate on behalfofhis client for an immigration neutral outcome. Logically essential to this
holding is the view that such negotiations would be legal and proper. 4
In fact, the Supreme Court reasoned that the consideration of such consequences should serve the
interests of both the defendant and the state: "By bringing deportation consequences into this process, the
defense and prosecution may well be able to reach agreements that better satisfy the interests ofboth
parties."s For example, not only would an open and realistic consideration ofcollateral consequences serve
1 Speech at the American Bar Association Annual Meeting, August 9th 2003
2 NDAA, Message from the President, 2/14/2007.
3 130 S.Ct. 1473 (2010).
4 I have omitted from this brief the legal theories argUing that the consideration of collateral consequences in general,
and immigration consequences in particular, is legally barred under a separation of powers or equal protection theory.
I've chosen not to discuss this position for the simple reason that Padilla has dispositively answered this debate.
5 Padilla at 1486.
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the interest ofjustice, in many cases, a defendant facing a significant collateral consequence would have a
powerful incentive to resolve his or her case early for charges that would not trigger the feared collateral
consequence. 6 .
In sum, a dominant view has emerged that the appropriate consideration ofcollateral consequences
is central to the pursuit ofjustice. In fact, Padilla constitutionally permits just such a consideration. It
cannot be stressed enough that we can no more adopt a simplistic, black and white approach to this issue
than we can to any other. In many cases, the impact of a collateral consequence will be appropriate and just,
but in others it will not. A prosecutor must distinguish between the two.
Currently, in addition to our office, the United States Attorney's Office and the Los Angeles County
District Attorney's Office, among others, allow for the consideration ofcollateml consequences in
appropriate cases when negotiating a plea.
A just settlement is highly fact specific. It requires a careful analysis ofall relevant factors. Our jobs
are too complicated for a single self-executing rule that will work in every case. It is simply too complicated
and case specific. Just as we do not have a policy that outlines the one appropriate consequence for every
burglary or assault, or for that matter dictates which defendants should be incarcerated for sixteen months,
and which should go to county jail for a year, we don't have a policy that will resolve how collateral
consequences should be weighed in each case. Our policy simply requires that we consider collateral
consequences in appropriate cases.
The following guidelines are appropriate:
First, collateral consequences are not a relevant or appropriate factor in any case involving a serious
or violent felony pursuant to Penal Code §667 and §1170;
Second, in general, the less serious the crime, the more likely a collateral consequence will UI1iustly
impact a settlement;
Third, in general, the shorter the sentence, the more likely a collateral consequence will unjustly
impact a settlement;
Fourth, by contrast, a serious felony accompanied by a lengthy sentence will rarely warrant
significant consideration ofcollateral consequences;
Fifth, a prosecutor should determine an appropriate sentence based upon all traditional and
appropriate factors, and then ifa significant downward departure is appropriate due to a disproportionate
collateral consequence, then the prosecutor should insist upon a concession to maintain a concordance
between the modified and the original sentence. For example, ifthe prosecutor decides it is appropriate to
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alter a charge to arrive at an immigration neutral result, and such an alteration results in the loss ofprior
ability, then the prosecutor might well decide to insist upon more custody time or a longer period of
Sixth, in general, some collateral consequences are considered a nonnal and just consequence of a
criminal conviction, however, when the collateral consequence is disproportionally heavy compared to the
actual sentence, this is usually a signal that justice has not been done.
Seventh, any alteration of a charge in order to arrive at a result that is more collateral consequence
neutral must be justified by the facts. These facts, however, do not need to be found in the original police
report. They can be generated from subsequent investigation. For example, ifin an appropriate case a
prosecutor decides to alter a charge, from possession for sale of narcotics to transportation ofnarcotics, in
order to secure an immigration neutral result, the factual basis for the transportation charge can be secured
through an admission by the defendant.
Eighth, a prosecutor is obligated to consider the real world consequences ofa plea in every case
including all apparent collateral consequences. However, such a consideration does not mandate any
alteration. Prosecutors must use their discretion to determine when such considerations result in a more just
sentence and when they do not.
Ninth, as a practical matter, it is often impossible to verify the truth of the alleged collateral
consequence that the defendant claims. For example, ifa new mother who has committed a crime claims
that she cannot go to county jail because nursing her new born will prove too difficult, we can rarely confinn
whether the mother actually intends to nurse the child. In immigration matters, an individual will often
allege severe immigration consequences, however, these determinations are sufficiently complicated that
they are often difficult to predict. The remedy is to structure the new settlement so that it is comparable to
the original offer. For example, ifthe new offer includes additional custody time to compensate for any shift
in charge, then it is very unlikely that anyone would accept the offer unless they were actually facing the
claimed collateral consequence. This is a similar to the process we often engage when we give a defendant a
choice offewer counts for more time in custody.
Tenth, a prosecutor's decision concerning collateral consequences should be transparent and when
appropriate noted on the record and, always, noted in the case file.
Any questions or concerns about a particular case can be discussed with the appropriate SuDDA or