Attorney General Jeff Sessions told New York law enforcement officers that "we've seen district attorneys openly brag about not charging cases appropriately under the laws of our country, so that provides an opportunity for individuals not to be convicted of a crime that might lead to deportation. Some have advertised that they will charge a criminal alien with a lesser offense than presumably they would charge a United States citizen, so they won't be deported."
The Justice Department referred us to policies and practices of the prosecutors offices in Brooklyn, Santa Clara and Baltimore.
While all three jurisdictions disputed Sessions’ characterization of their policies, we found that some offices are considering alternative offenses to which a defendant can plead to avoid “disproportionate collateral consequences,” such as deportation.
Acting Brooklyn District Attorney Eric Gonzalez announced a new policy April 24 for cases against non- citizen defendants, to minimize "collateral immigration consequences of criminal convictions, particularly for misdemeanor and other low-level offenses." The office hired immigration attorneys to advise prosecutors in plea offers and sentencing recommendations for noncitizens.
In certain cases, a noncitizen may be offered a plea for a lesser offense “in light of the disproportionate immigration consequences a higher level offense may result in,” the office said in its release. “When possible, the alternative should be similar in level of offense and length of sentence to that offered to a citizen defendant, while the charge may be different.”
Sessions said DAs advertise “that they will charge a criminal alien with a lesser offense,” but a spokesperson for the Brooklyn DA said their policy “does not pertain to charging decisions,,” but to sentencing recommendations and offenses to which defendants can plead, which come after charges have been filed.
Santa Clara County District Attorney Jeff Rosen issued a memo to fellow prosecutors in September 2011 for the consideration of "collateral consequences" in certain cases. It should not apply to cases involving a serious or violent felony, he said. The memo said a prosecutor may alter a charge toward an "immigration-neutral result," where the conviction does not lead to deportation.
“The contention that we charge an immigrant with a ‘lesser’ offense is false. In some appropriate cases, we agree to immigration-neutral charges, but as a practical matter this results in a longer sentence or greater number of charges — or a quicker guilty plea,” Rosen told PolitiFact. “Our collateral consequences policy — which can also factor in employment, education, housing, pregnancy — is open to both citizens and non-citizens.”
Rosen cited the 2010 U.S. Supreme Court case Padilla vs. Kentucky, which centered on a lawful permanent U.S. resident facing deportation after pleading guilty to drug distribution charges. The defendant claimed his counsel failed to effectively advise him that his plea could lead to deportation. The U.S. Supreme Court said counsel must inform a client whether a plea carries a risk of deportation.
The Baltimore State's Attorney's Office issued a news release May 4 saying it had instructed prosecutors to "strongly consider their prosecutorial discretion" related to minor, nonviolent criminal cases that involve immigrant victims, witnesses and defendants. State's Attorney Marilyn Mosby said prosecutorial discretion should be used to consider "the unintended collateral consequences that our decisions have on our immigrant population." The release did not specify what the prosecutorial discretion entailed.
Our ruling
District attorneys told us that the alternative sentences are designed to help people avoid deportation for minor crimes, and sometimes the plea deals bring a stricter or longer sentence, or a faster guilty plea. They also contend that they are not charging immigrants favorably over citizens, as plea deals and sentencing come after charges are filed.
Sessions' statement is partially accurate, but leaves out important details or takes things out of context. We rate it Half True.
District attorneys “have advertised that they will charge a criminal alien with a lesser offense than presumably they would charge a United States citizen, so they won’t be deported.”
— Jeff Sessions on April 28 in remarks to law enforcement officers in New York
About the Author
