For the Defense - Volume 1, Issue 3 - 2016 - 24

American Prosecutor's role in the post-Padilla era is to promote creative plea bargaining programs for noncitizens when appropriate and in the interest of justice.13 Ms. Altman cites to the portion of the Padilla decision where, according to her, Justice Stevens makes a "ground breaking invitation to the defense and prosecution bars" as follows: [I]nformed 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. As in this case, a criminal episode may provide the basis for multiple charges, of which only a subset mandate deportation following conviction. Counsel who possess the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation, as by avoiding a conviction for an offense that automatically triggers the removal consequence. At the same time, the threat of deportation may provide the defendant with a powerful incentive to plead guilty to an offense that does not mandate that penalty in exchange for a dismissal of a charge that does.14 24 For The Defense | Vol. 1, Issue 3 Justice Stevens advises that "informed consideration of possible deportation consequences" and "creative plea bargaining" should involve BOTH defense counsel and the prosecutor. The role of the prosecutor in the creative plea bargaining process, envisioned by Justice Stevens, is an active one that deserves the full attention of the legal community equal to the efforts employed to encourage criminal defense attorneys to provide effective assistance of counsel to noncitizens in criminal cases. Prosecutors have an interest in pursuing just outcomes for criminal cases and in maintaining safe communities. The National District Attorney's Association identifies three broad prosecutorial goals: 1) to promote the fair, impartial, and expeditious pursuit of justice; 2) to ensure safer communities; and 3) to promote integrity in the prosecution profession and coordination in the criminal justice system.15 Imagine what the post-Padilla era could have been like if the legal community's efforts included more than advancing the single purpose of reminding defense attorneys to advise clients of the potential for deportation? The legal community could have also educated the community at large and prosecutors about the resource drain on society created when families are separated by the deportation of an undocumented parent charged with a crime like a DUI or a theft. Acknowledging the negative impact of separating families in their community after a noncitizen parent is charged with a nonviolent offense, District Attorneys should reconsider policies that preclude ARD dispositions in DUI cases for a defendant without legal status in the United States or a Pennsylvania issued driver's license. More significantly, the Pennsylvania District Attorney's Association should encourage each District Attorney in the Commonwealth to train their staff on deportation issues and alternative plea agreements that would eliminate the likelihood of deportation for a noncitizen convicted of a nonviolent offense. To actually achieve the just outcomes originally envisioned by immigration advocates in 2010, criminal defense attorneys must cure the

Table of Contents for the Digital Edition of For the Defense - Volume 1, Issue 3 - 2016