The call for the progressive prosecutor to end the deportation pipeline

• Author: Talia Peleg
• Position: Associate Professor of Law and Co-Director, Immigrant and Non-Citizen Rights Clinic, City University of New York (CUNY) School of Law
• Pages: 141-214

THE CALL FOR THE PROGRESSIVE

PROSECUTOR TO END THE DEPORTATION

PIPELINE

TALIA PELEG*

ABSTRACT

“Progressive prosecutors” seek to redefine the role of prosecutors and

question the purpose of the criminal legal system. Alongside this evaluation

comes the urgent need to reexamine the scope and substance of their duties

toward all, but particularly immigrant defendants, seeing as immigrant

defendants suffer outsized punishment for most criminal offenses. Ten years

ago, Padilla v. Kentucky broke ground in finally recognizing that defense

counsel is constitutionally obligated to advise immigrants of the clear risks

of deportation associated with a plea. Nevertheless, immigrants ensnared

in the criminal legal system have since faced deportation at ever-increasing

rates. Given the entwinement of immigration and criminal law, organizers

and scholars have recognized that local prosecutors serve as gatekeepers

to the federal criminal removal system. Yet, prosecutors around the country

wildly differ in their treatment of immigrant defendants, at times ignoring

or misusing this gatekeeping role.

In the last decade, new prosecutorial goals—ensuring fairness and equity,

promoting community integrity, tackling disproportionate treatment of Black

and Brown communities in policing and incarceration, addressing root

causes of crime—have gained popularity. Decriminalization and decarcera-

tion have been tools utilized to meet these goals. However, the specific goals

strived for by self-described progressive prosecutors require an examination

of their treatment of non-citizens, given the prosecutor’s outsized role in

determining immigration consequences and application of an immigrant’s

rights lens to current practices. Their policies toward immigrant defendants

to date have been tepid and, at times, harmful.

* Associate Professor of Law and Co-Director, Immigrant and Non-Citizen Rights Clinic, City

University of New York (CUNY) School of Law. The views expressed in this paper, and all errors, are

my own. For invaluable feedback and conversations on drafts, thank you to Nermeen Arastu, Ingrid

Eagly, Kevin Johnson, Ruben Loyo, Matt Main, Jason Parkin, Jenny Roberts, Krystal Rodriguez, Jessica

Rofe

´, and the participants in the Steven Ellmann Clinical Theory Workshop (NYU), 2020 Law and

Society Association Annual Meeting, 2020 Clinical Law Review Writer’s Workshop (NYU), the CUNY

School of Law Faculty Forum. Special appreciation to Liora Cohen-Fraade and Ella Nalepka for their

excellent research assistance and support on this project. © 2021, Talia Peleg.

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Careful study reveals “progressive prosecutors” have expansive obliga-

tions to immigrant defendants—rooted in the progressive prosecution move-

ment’s own rhetoric about the appropriate role of the prosecutor and the

underlying purposes of the criminal legal system, prosecutorial ethical and

professional standards, and Supreme Court jurisprudence. The progressive

prosecutor’s duty is simple—to utilize their powers to avoid the double punish-

ment of criminal sentence and deportation. That is, progressive prosecutors

must ensure that policy choices that purport to support communities of color

and politically marginalized communities do not neglect immigrant defend-

ants, thereby creating disproportionate consequences for this population.

Due to the immigration consequences that might flow from any contact

with the criminal legal system, progressive prosecutors need to look at their

role in plea negotiations and beyond. A progressive prosecutor’s work then is

to both understand their role as gatekeeper to the federal deportation

machine and act to stop feeding it. This Article proposes a series of guidelines

and policy recommendations prosecutors can institute toward these ends,

including institutional changes as well as the adoption of specific practices

that consider immigration consequences at all stages of criminal proceed-

ings—arrest, conviction, sentencing, and beyond. Some potential recommen-

dations include creating an immigrant integrity unit to audit and revamp all

areas of practice to establish policies like the expanded use of declination,

the encouragement of pre-arrest diversion, and a prohibition on information

sharing with ICE.

“Progressive federalism” suggests that by taking these kinds of actions,

progressive prosecutors will move closer to securing proportionate outcomes

for immigrants in the criminal legal system. Thus, while federal immigration

reform remains at a stalemate, the local prosecutor’s adoption of a robust im-

migration agenda will simultaneously begin to detangle the criminal and im-

migration systems and influence immigration enforcement policy on a

national level.

TABLE OF CONTENTS

INTRODUCTION ......................................... 144

I. FEDERAL IMMIGRATION REMOVAL IS DEPENDENT ON STATE AND LOCAL

ACTORS IN THE CRIMINAL LEGAL SYSTEM . . . . . . . . . . . . . . . . . . . 153

A. Recent Changes that Created the Modern Criminal

Removal System ............................... 155

1. Focus on Criminal Grounds of Removal . . . . . . . . . . 155

2. Reducing Immigration Adjudicator Discretion. . . . . 156

142 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 36:141

B. These Shifts Make Federal Immigration Enforcement

Reliant on Actors in State and Local Criminal Legal System 157

1. Local Prosecutors Drive Criminal Grounds of

Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

2. Local Actors Directly Influence Who Is Detected by

ICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

C. Disproportionate Targeting and Impact on Black and

Brown Immigrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

II. THE EMERGENCE OF THE PROGRESSIVE PROSECUTION MOVEMENT AND

ITS IMPACT ON IMMIGRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

A. Rise of the Progressive Prosecution Movement . . . . . . . . . 161

B. Theory and Practice of the Progressive Prosecutor. . . . . . 166

1. Theory: Questioning the Role and Function of the

Prosecutor, the Purposes of Criminal Legal System,

and Consideration of Collateral Consequences . . . . . 166

2. Progressive Prosecutors’ Platforms and Policy

Initiatives in General. . . . . . . . . . . . . . . . . . . . . . . 168

C. Progressive Prosecution Movement and Immigration. . . . 171

III. WHAT PROGRESSIVE PROSECUTORS SHOULD DO REGARDING

IMMIGRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

A. Progressive Prosecutors Must Do More . . . . . . . . . . . . . . 174

1. Prosecutorial Ethical and Professional Standards

Support Obligations to Immigrant Defendants . . . . . 174

2. Supreme Court Jurisprudence Supports Prosecutorial

Obligations to Immigrants. . . . . . . . . . . . . . . . . . . . 176

3. Progressive Prosecutors’ Rhetoric Supports

Obligations to Immigrant Defendants . . . . . . . . . . . . 177

B. Progressive Federalism Suggests Progressive Prosecutors

Can Do More................................. 179

IV. SETTING THE PROGRESSIVE PROSECUTOR’S IMMIGRATION AGENDA . . . 185

A. Scope and Guiding Principles ..................... 185

1. Scope of Agenda .......................... 185

2. Guiding Principles: In Writing, Abolitionist Ethic,

Flexibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186

B. The Agenda: Concrete Proposals . . . . . . . . . . . . . . . . . . . 190

2021] THE CALL FOR THE PROGRESSIVE PROSECUTOR 143