New York University Public Law and Legal Theory Working Papers

Document Type



34 Cardozo Law Review 1751 (2013)


This Article considers three factors contributing to a plea-bargain crisis for noncitizens charged with misdemeanors: 1) the expansion of deportation laws to include very minor offenses with little opportunity for discretionary relief from removal; 2) the integration of federal immigration enforcement programs with the criminal justice system; and 3) the institutional norms in non-federal lower criminal courts, where little attention is paid to evidence or individual equities and where bail and other process costs generally outweigh perceived incentives to fight charges. The Article contends that these factors increase the likelihood that a noncitizen’s low-level conviction will not reliably indicate guilt or will be the product of unchecked constitutional rights violations. Unwarranted convictions, many of which trigger deportation and other negative immigration consequences, undermine the integrity of both criminal justice and deportation systems. The Article also argues that, contrary to the Supreme Court’s assumption in Padilla v. Kentucky, lawful permanent resident defendants are often unable to effectively negotiate for immigration-safe dispositions in the low-level cases where the rift between the underlying criminal conduct and the deportation outcome is largest. The Article’s analysis suggests that reforms at both federal and state levels remain critical to address the disproportional immigration consequences of minor convictions and the plea-bargain crisis for noncitizens in misdemeanor court.

Date of Authorship for this Version



secure communities, immigrants, 287(g), criminal alien program, CAP, petty offenses, minor crimes, proportionality, collateral consequences, removal, plea bargaining, prosecutorial discretion, immigration detainer, Rikers, ICE, DHS, Padilla, Argersinger, Gideon, Powell, Shelton, Lafler, Frye