A Suggested Policy Improvement

When dealing with the Maricopa County Attorney’s Office, it’s important to understand that there’s pretty much a policy for everything. Like the “show no mercy” policy of a schoolyard bully or street thug, however, each of their policies is only enforceable to the extent they have an unfair advantage and the resultant negotiating leverage to demand the absurd from their victims. Strong cases produce harsh pleas. So do mandatory minimums, and luckily for prosecutors here, there’s almost always one.

For the most part, what the policies do is ensure that only the most dangerous criminals, men and women who do not fear the system or have gone to somewhat successful lengths to avoid prosecution, get great plea deals. The ones with consciences, and especially the innocent, would be well advised to drop their pants and walk into court backwards. Prosecutors with policies happily ruin those people’s lives day in and day out with a smile, no doubt going home with the soothing words of the Nuremberg defense comforting them as they reflect on the noble work they do.

For the most part, the inhumane policies of the county attorney are quite clear. Certain crimes always get certain pleas. Who cares if Jean Valjean stole a loaf of bread to feed his family? Theft is illegal. His attempts to escape an unfair prison sentence? Also illegal. The law in Arizona is clear in such a situation and would require not just a prison sentence, but an enhanced one that would have to run consecutive to any other prison sentence. The county attorney would have a very definite policy in such a situation, and Les Misérables would be a very short and depressing story if it happened here.

Despite the best efforts of the tireless policy makers in this county, unfortunately, there are a few policies that aren’t quite the model of clarity. Here’s the one that’s been befuddling quite a few prosecutors lately:

We do not make plea offers based on immigration status.

Seems clear enough, but there’s a problem. Every once in a while, I run across this sort of conversation:

ME: I don’t think we have a factual basis for your plea offer. Can we change the charge to [something different] but keep everything else the same?
MCAO: No way. That sounds like it might somehow benefit your client in future immigration proceedings. We don’t consider immigration status in our pleas.
ME: But aren’t you considering immigration status by refusing to change it?
MCAO: [Silence] [Head Explodes…Presumably]

There are a lot of situations where I do want to change the charge to keep a client from being deported, including many where I say so to the prosecutor. There are also about as many situations where my client pulls the old “I didn’t kidnap that person, I just robbed him at gunpoint” or something like that and I have to only change the title of the charge and the code section to get a plea that makes everyone happy.

Thanks to the county attorney’s policy of not considering immigration except when they consider it, it makes my job awfully tough a lot of the time. Amazingly, some prosecutors seem so obsessed with immigration status and the possibility that a plea might somehow have a less deleterious effect on it that they actually seem like an encyclopedia of immigration knowledge. They can spot a fewer-immigration-consequences plea a mile away. I’ve even had immigration lawyers tell me that certain offers appear intentionally designed to result in deportation and inadmissibility.

Knowing the county attorney is the same agency that not too long ago used to pride itself on picking up the immigration slack where it felt the federal government wasn’t going far enough and that it’s the basically the same group of people doing this stuff with a new elected head, I think it’s pretty obvious what they really want. Being the nice guy that I am, I’m even willing to propose this change to the official policy statement:

We do not make plea offers based on immigration status unless it helps us to punish someone more or if that someone has a good case and/or an acceptable amount of risk.

There ya’ go. Why should they keep kidding themselves? If you’re just following orders, the orders should be clear. My proposal is perfect.

They should really pay me for this stuff.