Immigration Policy 1
The District Attorney’s Office seeks to provide equal justice for all involved in the criminal justice system. The Office acknowledges the incredible responsibility that comes with prosecuting criminal cases: seeking justice for victims, working with the community to prevent crime, reaching the right result for the accused, and enhancing public safety. The District Attorney’s Office firmly believes everyone should have equal access to the criminal justice system. Equal access demands fair treatment of all victims, witnesses, and defendants that appear before all facets of the criminal justice system.
In order for victims and witnesses to have equal access to justice, they must not fear seeking out law enforcement for help or to provide information, and they must not fear appearing for meetings or court appearances. While this Office cannot remove all fear, the Office will act in a manner that fosters trust with victims, witnesses, and the community. As part of this, the attorneys, investigators, and victim advocates will not solicit or disclose information regarding victims’ or witnesses’ immigration status or birthplace. This Office will make information available to victims regarding resources that can help with immigration needs and questions. The Office will not contact the federal government to provide information gathered as to an individual’s place of birth or immigration status. This is equally true for victims and witnesses.
Although much of this policy summarizes the law and rational for considering immigration consequences for offenders, our office is committed to seeking justice for victims and ensuring their safety, as well as the safety of the community.
We want defendants to be fully informed of the collateral consequences for a conviction, including possible immigration consequences. This will be done either in writing through the plea paperwork or both verbally and in the plea paperwork. However, the questions regarding immigration status or consequences should not be posed only to certain defendants based on their physical appearance or last name. The same questions should be asked of all defendants, including pro se defendants. We have previously communicated our position on this issue to the bench. If a judge selects only certain defendants for such questions, our prosecutors will object to that process and notify one of our Chief Deputies.
Equal access to justice is important for defendants as well. Defendants must be able to participate in the criminal justice system in a manner in which they can accept responsibility or challenge the criminal charges. This Office acknowledges the necessity for defendants to be able to attend court appearances without fear of being detained on collateral issues like immigration issues. If defendants fear they may be detained for a collateral issue, they may refuse to attend court dates. It is one of the reasons that we launched the “Fresh Start” Warrant Forgiveness Program.
Failure to appear in court only prolongs a criminal case and does not allow the accused to take part in the system. Importantly, this also delays resolution for the victims of these cases. The victims, defendants, and community have a vested interest in criminal cases coming to final resolution in a timely manner. To promote this, the Office gives discretion to our prosecutors to move up court dates, if requested and with the agreement of the court, if there is enough time to communicate with victims and ensure a victim’s right to be present and informed of court appearances is protected.
In seeking justice, the prosecutors in this Office should always carefully select appropriate charges and fair disposition of criminal acts. In furtherance of this, efforts are employed to treat similarly situated defendants equally and fairly. However, equal justice for all requires that those entrusted with upholding the law contemplate all aspects of the victims, the community impacted, and the individuals charged. The Office recognizes that different individuals charged with the same crime may face significantly different consequences due to a multitude of different factors, including immigration status. Collateral consequences that flow directly from the cumulative effects of a criminal charge or conviction on someone’s life can sometimes be inequitable and disproportionate. In some cases, these collateral consequences are appropriate and just; in others, collateral consequences can so negatively impact the defendant and victim that the resulting punishment does not constitute a just result.
In the immigration context, consequences may be imposed by federal immigration courts, federal administrative agencies, Executive Orders, Congress, local legislative bodies, local administrative agencies, public and private employers, and housing and service providers. While these consequences are outside the terms of a criminal judgment or sentence, they often flow directly and unavoidably from the fact of a criminal disposition. Unless these collateral effects are taken into consideration by our attorneys in appropriate circumstances, some defendants will be exposed to direct consequences that were not intended by the prosecutor when considering the facts and significance of the criminal offense and the background and history of the defendant. Consideration of the potential disproportionate impact of collateral consequences while still maintaining public safety, particularly in the context of immigration consequences, is consistent with the duty of all prosecutors to pursue justice by prosecuting the guilty, protecting the innocent, and ensuring that the punishment constitutes an appropriate response to the crime committed.
The United States Supreme Court has recognized the severity of immigration consequences in criminal cases. In Padilla v. Kentucky, 559 U.S. 356 (2010), the Court held that, in light of the severity of the deportation consequence, the Sixth Amendment duty to provide effective assistance of counsel requires a criminal defense attorney to affirmatively and accurately advise the defendant about the immigration consequences of a guilty plea. Immigration consequences of criminal justice involvement are viewed as inextricably linked to the criminal justice process itself. The Colorado Supreme Court in People v. Pozo, 746 P.2d 523 (Colo. 1987) came to a similar conclusion many years prior to the decision in Padilla. More recently, the Colorado Supreme Court recognized the requirement that a defense attorney advise a client about immigration consequences in Kazadi v. People, 291 P.3d 16 (Colo. 2012).
In Padilla, the Court recognized that it is in the State’s interest to give informed consideration to immigration consequences when seeking to resolve criminal charges or fashion sentences. Indeed, the Supreme Court expressly encouraged the consideration of immigration consequences by both parties in the plea negotiating process. The Court stated that “informed 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.” [1] The Court encouraged the defense and prosecution in appropriate cases to work together “to plea bargain creatively . . . in order to craft a conviction and sentence that reduce the likelihood of deportation.” [2]
Padilla relied on the fact that, for noncitizens, deportation or removal is an integral part of the penalty imposed for criminal convictions. Deportation may result from serious offenses or a single minor offense even for lawful immigrant residents. It may be by far the most serious penalty flowing from a conviction. While defense counsel is vested with the primary responsibility of adequately advising the defendant of such consequences, it remains important to the integrity of the criminal case that prosecutors be aware of the possibility of immigration consequences when negotiating pleas, articulating factual bases for convictions, and advocating for particular sentences. It is for this reason that the office has, and will continue, to provide training to our prosecutors about immigration consequences. Prosecutors do not have a duty to inquire about a defendant’s immigration status but should be cognizant of the responsibility of defense counsel to provide advice regarding immigration consequences and to ensure judges include reference to this requirement in plea advisements. Potential immigration consequences vary based upon a number of factors, include a person’s current immigration status, and criminal cases may trigger a variety of serious immigration responses including deportation, removal or cancellation of protected status, inadmissibility or ineligibility for future paths to legal status, and bars for reentry.
Accordingly, it is the policy of the District Attorney’s Office that our attorneys consider the immigration and other collateral consequences to a defendant in recommending dispositions, to the extent they are aware of such, including:
- Crime of conviction
- Language used in disposition documents (such as mens rea language e. recklessly vs. knowingly; specifying particular weapons, i.e. ballistic knife; specifying particular controlled substances, i.e. morpholine), and
- Length of any suspended sentence or sentence imposed (the length of both a suspended sentence and a total sentence imposed, regardless of time actually served, in some cases determines whether a particular offense triggers specific immigration consequences). (Note also length of maximum possible sentence for a crime may trigger immigration consequences, even if the maximum is not imposed by the court. This is one reason why the state legislature changed the maximum penalty for a class 1 misdemeanor to 364 days.)
The following guidelines are appropriate when considering consequences of dispositions:
- Collateral consequences are generally not a compelling or appropriate factor for consideration, absent exceptional circumstances, in any case involving:
- Violent offenses
- Aggravated or violent sexual factual basis offenses
- Aggravated drug distribution or possession with intent to distribute drugs
- Aggravated domestic violence offenses
- Vehicular fatalities
- A modification of a charge in order to arrive at a result that is more neutral with respect to immigration consequences should be related to the underlying crime or an offense of a similar nature to the extent possible, recognizing that there may be exceptions.
- If offering a plea to a significantly lower-level offense is appropriate due to a disproportionate collateral consequence, the prosecutor may consider requiring a longer sentence or higher penalty to maintain a relationship between the reduced plea and the original charge. For example, if the prosecutor decides it is proper to modify a charge to attain a more favorable immigration result, and such a modification results in a much less severe charge than a typical plea bargain offer, the prosecutor might decide to insist upon more custody time, a longer period of supervision, a larger fine, or more community service hours for equitable consideration to other similarly situated offenders.
- A prosecutor may also consider a reduced penalty if the appropriate resolution is a plea to a higher-level offense than that charged originally.
- A prosecutor’s decision concerning collateral consequences should be transparent and always noted in the case file. There may be limited occasions when the reasons for a decision should be noted on the record in court, but such a practice is not required.
- Prosecutors should ensure that judges inquire of all defendants if they have been advised of immigration consequences, if any, when accepting a plea.
- Certain offenses statutorily cannot be modified without particular circumstances, regardless of the collateral consequences. For example, driving under the influence and driving while ability impaired cases cannot be pled to an offense other than driving under the influence or driving while ability impaired unless the prosecutor cannot prove a prima facia case. Similarly, a domestic violence factual basis and a sexual factual basis cannot be removed from any plea unless the prosecutor cannot prove a prima facia case regardless of the immigration consequences.
- Prosecutors should continue to appropriately evaluate post-conviction motions for ineffective assistance of counsel and a failure to properly advise a defendant of immigration consequences. Prosecutors are encouraged to speak with their supervisor o with Chief Deputy Christian Gardner-Wood with any questions or concerns about post-conviction motions.
In any case involving collateral immigration consequences, the District Attorney’s Office and all attorneys retain the discretion and prosecutorial authority to handle cases as they deem appropriate, recognizing that a consideration of the immigration consequences is one of many factors to consider in arriving at a disposition offer. The Chief Deputies are always available to discuss the appropriate handling of cases with our attorneys.
In Boulder County, all victims can safely call the police and our DA’s Office. We urge victims to come forward. Unreported crimes cannot be prosecuted, and the offenders will remain in the community. We promise to always help victims to find justice and safety, regardless of their immigration status. Immigrants in our communities are particularly vulnerable to crimes like fraud, wage theft, and bias-motivated crimes. Unfortunately, many immigrants are less likely to report crimes when they occur, either out of fear of the criminal justice system or a lack of familiarity with the reporting process. The problem of underreporting may be magnified by changes to our nation’s immigration policies. Undocumented immigrants are increasingly fearful of deportation or removal should they make contact with law enforcement. However, improvements to our programs for helping immigrants have a meaningful impact. A National Institute of Justice study found that immigrant populations were comfortable reporting crimes in cities where their communities were included in the fabric of civic life, and where programs exist to serve their needs. As District Attorney, I am committed to providing the best possible services to our immigrant communities.
If you have any further questions regarding this policy please contact Christian Gardner-Wood, Chief Trial Deputy District Attorney at 720-564-2826 or cgardner-wood@bouldercounty.gov.