Law & the Courts

Dangerous ‘Collateral Consequences’ in Santa Clara County, California

(Photo: Flynt/Dreamstime)
Local DAs go easy on non-citizen criminals so they won’t risk being deported.

Neha Rastogi must have thought she was living the American Dream. A native of India, Rastogi was a 30-something high-tech star working at the world’s premier technology company (Apple), sometimes directly with Silicon Valley’s biggest celebrity (Steve Jobs). Married to another successful IT developer and fellow India native, and with two children soon to arrive, she seemed to be on top of the world.

Except she wasn’t. And thanks to a California district attorney’s irrational, and probably unconstitutional, “collateral consequences” policy, Ms. Rastogi and her children are likely to continue to live in fear. Santa Clara County district attorney Jeffrey Rosen has a formal policy that allows reductions in charges against non-citizens (legal or illegal) to avoid risking the possibility that a defendant might be deported for committing a felony.

As reported in excruciating detail by Michael Daly in The Daily Beast, this woman was subjected to the worst kind of mental and physical abuse at the hands of a reprehensible bully and abuser of a husband. In short, Ms. Rastogi’s life was steeped in domestic terror.

Fearing that reporting her husband’s increasingly violent behavior would only increase the danger to her life and her children’s safety, Ms. Rastogi suffered in silence for more than 10 years. A letter carrier who witnessed Ms. Rastogi being savagely beaten by her husband on the sidewalk called the police in 2013, exposing the family’s frightening secret. Charges were filed, but at his wife’s urging, a felony-assault complaint was reduced to a misdemeanor carrying only a fine and counseling.

Three years of terror later, however, Ms. Rastogi finally went back to the police with video evidence of the serial and escalating abuse she was suffering. The abuser (who is overheard blaming the first police intervention on his wife’s failure to remain quiet during her beating) was charged with felony assault, which carries a possible sentence of up to four years in prison. (Daly’s story includes links to chilling audio recordings Ms. Rastogi made of her maniacal husband tormenting, beating, and promising to kill her.)

What happened next is utterly dumbfounding.

Rosen’s office reduced the felony-abuse charge to simple assault and “offensive touching.” Instead of four years in prison, the DA agreed to 30 days in jail and five months of unsupervised public service. And since the defendant was not being charged with a felony, Rosen would not be required to refer him to federal immigration officials for possible removal from the country.

Landmark Legal Foundation acquired a copy of DA Rosen’s official “collateral consequences” policy through the California Public Records Act. It sounds reasonable enough: “It is not generally the duty of a prosecutor to mitigate the collateral consequences to a defendant of his or her crime. However, in those cases where the collateral consequences are significantly greater than the punishment for the crime itself, it is incumbent upon the prosecutor to consider and, if appropriate, take reasonable steps to mitigate those collateral consequences.” In practice, Rosen’s policy appears to be that possible deportation is worse than the domestic terrorism and savage beatings that women like Ms. Rastogi endure. As The Daily Beast reports, DA Rosen seeks to avoid deportations. An examination of similar Santa Clara County cases carrying deportation consequences revealed that the outcome in this case was not unusual.

Rosen’s policy, like the collateral-consequences policies of an increasing number of prosecutors in other “sanctuary” jurisdictions, is based on a faulty reading of the U.S. Supreme Court’s 2010 decision in Padilla v. Kentucky. A 5–4 majority held that defense attorneys have a duty to inform their clients of potential immigration ramifications of guilty pleas in criminal cases. Seven justices concluded that defense attorneys do not provide effective assistance when they mislead their clients about the removal consequences of a plea. The case does not impose any burden on prosecutors, but does note that both prosecution and defense may benefit when non-citizen defendants are fully informed of potential deportation consequences in a prosecution: “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.”

Rosen’s policy, like those of an increasing number of prosecutors in other ‘sanctuary’ jurisdictions, is based on a faulty reading of the U.S. Supreme Court’s 2010 decision in Padilla v. Kentucky.

Padilla is a controversial decision in that it imposes on criminal-defense attorneys a duty to have knowledge of a highly specialized area of the law. Justice Samuel Alito’s concurring opinion limited the burden he would place on defense lawyers to stating that they should “1) refrain from unreasonably providing incorrect advice; and 2) advise the defendant that a criminal conviction may have adverse immigration consequences and that, if the alien wants advice on this issue, the alien should consult an immigration attorney.” The bottom line is that even the seven justices in the majority draw the line of duty at the defense counsel’s chair.

DA Rosen’s reading of the case, however, is not just that defense attorneys should inform their clients of immigration consequences, but that prosecutors are duty-bound to make sure defendants do not suffer from those consequences. Rosen uses Padilla as a pretext for implementing a policy that in practice provides favorable prosecutorial treatment to non-citizens charged with crimes.

If an African American is charged with a felony in Santa Clara County, he does not qualify for Rosen’s special treatment. Native Americans are likewise ineligible. Hispanic U.S. citizens do not qualify for reductions. But if someone is here illegally, she is cut a special deal. The U.S. and California constitutions both require “equal protection” of all under the law. Equal protection means that there is no justice if two people are charged with a crime and one gets a break because he or she is a non-citizen, while the citizen must face the charge’s full punishment. In Santa Clara County and other sanctuary jurisdictions, U.S. citizens are not afforded equal protection in the administration of justice.

On September 14, 2011, a memorandum from Rosen to his staff announced the policy’s implementation. He declared wrongly that “of course, the recent U.S. Supreme Court case of Padilla v. Kentucky ruled that collateral immigration consequences of a conviction for a non-citizen can be profound and warrant direct consideration by both the prosecution and defense.” In fact, the Supreme Court noted but did not rule that collateral consequences warrant direct consideration by both sides in a prosecution. It is an important distinction that Rosen surely must understand.

But he goes on. “Accordingly, a dominant paradigm has emerged — prosecutors should consider both collateral and direct consequences of a settlement in order to discharge our highest duty, to pursue justice” (emphasis in original). Furthermore:

Intrinsic to the Padilla decision is the constitutionality of considering collateral consequences when crafting a settlement. In other words, the court ruled that it was [ineffective assistance of counsel] to fail to advise and negotiate on behalf of his client for an immigration neutral outcome. Logically essential to this holding is the view that such negotiations would be legal and proper.

Rosen’s memorandum acknowledges that his policy has equal-protection problems, but shrugs them off: “I have omitted from this brief the legal theories arguing that the consideration of collateral consequences in general, and immigration consequences in particular, is legally barred under a separation of powers or equal protection theory, I’ve chosen not to discuss this position for the simple reason that Padilla has dispositively answered this debate” (emphasis added). This is simply false.

Anonymous sources familiar with implementation of the Rosen collateral-consequences policy tell Landmark how it works in practice: “DA Rosen has a policy of no deportation of defendants. In order to achieve that, noncitizens (legal or illegal, doesn’t matter) do not have to plead guilty to offenses that MAY trigger deportation.” A common example is driving under the influence; for felony DUIs, the DA amends the charges to misdemeanor “wet reckless.” “But no citizen gets that deal. Not one.”

DA Rosen’s unconstitutional and dangerous policy is on display in the case of Neha Rastogi’s husband. It is only a matter of time before someone in Santa Clara County is seriously injured or even killed by a drunk driver, domestic abuser, or other dangerous criminal who had been cut a special deal to avoid complying with federal immigration laws. DA Rosen should immediately cease his dangerous sanctuary policy before it is too late.

There is also hope for pushback from the bench. While prosecutors have tremendous latitude in the prosecution of cases, it is up to judges to approve settlements. At Ms. Rastogi’s husband’s sentencing hearing last month, a judge refused to accept the sentencing recommendation. He delayed the sentencing to May 18 after hearing Ms. Rastogi’s victim-impact statement, which she read aloud for the court. In it she said, “I feel fooled not just by a convicted criminal, aggressor, wife beater, batterer, that I unfortunately married — the worst mistake of my life — but by this court as well. With all due respect to the system. . . . I stand FOOLED, disgraced and ridiculed as a victim.”

Meanwhile, Santa Clara County has joined San Francisco in a federal lawsuit challenging the Trump administration’s attempts to rein in “sanctuary city” abuses. DA Rosen’s sweetheart-plea-deal policy is the natural and dangerous offspring of these illegal policies. It is long past time that these communities were brought to their senses.


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— Pete Hutchison is the general counsel at Landmark Legal Foundation.


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