Santa Clara County District Attorney Jeff Rosen

As stated in a recently released document, the Santa Clara County District Attorney’s Office announced they will change their policy regarding the consideration of collateral consequences (such as possible deportation consequences for a minor conviction) when negotiating plea agreements. The memo states, “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, if appropriate, take reasonable steps to mitigate those collateral consequences.” 

The document goes on to illustrate how collateral damage of convictions have become more pervasive in stating, “Collateral consequences can now range, for example, from the loss of educational 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 of a defendant. Ofcourse, the recent U.S. Supreme Court case of Padilla v. Kentucky 130 S.Ct. 1473 (2010), ruled that collateral immigrations consequences of a conviction be profound and warrant direct consideration by both the prosecution and defense.”

To help frame the discussion, the DA’s office points to Supreme Court Justice Anthony Kennedy’s address to the ABA in 2003, “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.”

The memo outlines how and when prosecutors can use their discretion to consider collateral consequences while citing other offices such as the US Attorney’s Office and the Los Angeles County DA’s Office who also allow for such considerations when negotiating a plea.

The policy shift occurs at a time as Santa Clara County’s law enforcement community is attempting to build trust and confidence with its immigrant residents in the wake of an uptick in federal immigration enforcement policies. Santa Clara County is also currently reviewing and creating a new detainer policy in response to the highly controversial Secure Communities program, which automates the transfer of fingerprints from local law enforcement to Immigration Customs and Enforcement.