American state prosecutors are increasingly confronting the question of how to modify their practice, if at all, when prosecuting noncitizen defendants. As a result of recent trends in immigration law and policy, virtually any interaction with the criminal justice system leaves noncitizens, regardless of their lawful or unlawful status, at a very real risk of deportation or other negative immigration penalties. The Supreme Court’s decision in Padilla v. Kentucky, identifying deportation as a penalty directly tied to the criminal process, has prompted a wealth of scholarship, particularly regarding the role of the criminal defense attorney. Yet this scholarship has largely glossed over the role played by the prosecutor, arguably the central actor in determining the outcome of most criminal cases. This Article is a step toward filling that gap.
The Article begins by identifying and exploring emerging trends in state prosecutors’ attitudes and practices regarding immigration penalties that flow from criminal convictions, presenting the results of a survey conducted in the Kings County (Brooklyn) New York District Attorney’s office. Addressing com- mon concerns shared by many state prosecutors, the Article proposes that the informed consideration of immigration consequences does not offend principles of federalism or equity but instead focuses prosecutorial resources on ensuring case outcomes that are proportionate to the charged offense. In Padilla, the Supreme Court proposed that plea negotiations are an area in which the interests of the state and the interests of noncitizen defendants converge. Elaborating on this identified convergence of interests, this Article concludes that state prosecutors can best embody their role as stewards of justice and community safety by engaging with immigration penalties during the plea- bargaining phase of a case and working with the defense to craft immigration- neutral pleas when appropriate.
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