Prosecutors have wide discretion to decide how to charge defendants. In exercising that discretion, a prosecutor certainly may consider the sentence associated with each possible charge, and may choose to pursue the charge or charges that is most likely to result in the outcome that the prosecutor sees as just. But the criminal sentence may not be the only outcome of a criminal case. A variety of collateral consequences may be imposed by law, such a change in immigration status, a requirement to register as a sex offender, or loss of professional licensure. Other consequences may also follow certain convictions, such as loss of employment or housing. May prosecutors consider collateral consequences when making charging decisions and when evaluating possible plea bargains? Should they do so? Must they? The question has made headlines recently, in the following context: the Trump administration is taking a harder line on immigration than previous administrations. The Department of Homeland Security issued a memorandum earlier this year making it a priority to deport removable aliens who have been charged with or convicted of any criminal offense. Some state prosecutors have instructed their staffs to consider the immigration consequences to the defendant when determining the appropriate disposition of minor criminal cases. For example, this article discusses actions taken by the chief prosecutors in Baltimore and Brooklyn. The latter warned of the potential for collateral consequences that are "unintended," "severe," "unfair," and "disproportionate." U.S. Attorney General Jeff Sessions has responded by stating that he is baffled by the [...]
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