Thursday, August 26, 2010

Padilla & prosecutors duty

Defense counsel should be aware that prosecutors also have a responsibility to consider deportation and other so-called “collateral” consequences in plea negotiations. Prosecutors are not charged merely with the obligation to seek the maximum punishment in all cases, but with the broader obligation to “see that justice is accomplished.” National District Attorneys Association, National Prosecution Standards § 1.1 (2d ed. 1991). Prosecutors are thus trained to take these collateral consequences into account during the course of plea bargaining. E.g. U.S. Dep’t of Justice, United States Attorneys Manual, Principles of Federal Prosecution, § 9- 27.420(A) (1997) (in determining whether to enter into a plea agreement, “the attorney for the government should weigh all relevant considerations, including . . . [t]he probable sentence or other consequences if the defendant is convicted”) (emphasis added). These prosecutor responsibilities can be cited whenever a prosecutor claims that he or she cannot consider immigration consequences because to do so would give an unfair advantage to noncitizen defendants.

Courts have stated that immigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done. In that regard, e.g. the handbook for trial attorneys states that "the respondent should be aided in obtaining any procedural rights or benefits required by the statute, regulation and controlling court decision, of the requirements of fairness." Handbook for Trial Attorneys §  1.3 (1964). See generally Freeport-McMoRan Oil & Gas Co. v. FERC, 962 F.2d 45, 48 (D.C. Cir. 1992) (finding astonishing that counsel for a federal administrative agency denied that the A.B.A. Code of Professional Responsibility holds government lawyers to a higher standard and has obligations that "might sometimes trump the desire to pound an opponent into submission"); see also Reid v. INS, 949 F.2d 287 (9th Cir. 1991) (noting that government counsel has an interest only in the law being observed, not in victory or defeat). 

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