This past October, the U.S. Supreme Court heard oral arguments in Padilla v. Commonwealth of Kentucky. Padilla, a U.S. legal resident, but not a citizen, received a five-year prison sentence after pleading guilty to two misdemeanor drug-possession and one felony drug-trafficking charge before a Kentucky court in 2001. Pursuant to federal immigration law, Padilla was subject to mandatory deportation after finishing his prison term for committing an aggravated felony, even though he has lived legally in the U.S. for 40 years.
At issue in the Padilla case is whether it is considered ineffective assistance of counsel — a constitutional question of whether a criminal defense lawyer performs competently — if a criminal defendant's attorney misinforms him or her of the immigration consequences of a guilty plea. If a criminal defendant is able to successfully prove that his or her constitutional right to effective assistance of legal counsel was violated, the guilty plea will be thrown out. In Padilla, the defendant asked his court-appointed lawyer if pleading guilty would have any impact on his immigration status. The attorney told him that it would not because of the amount of time he had been living in the country — advice which turned out to be wrong.
Padilla appealed his conviction on the grounds of ineffective assistance of counsel. The Kentucky Supreme Court, however, did not agree, holding that under the Sixth Amendment right to effective assistance of counsel, an attorney only has a duty to warn a client of the direct consequences of a guilty plea, and that mandatory deportation was a collateral, indirect consequence of the guilty plea.
Padilla then appealed his case to the U.S. Supreme Court.
Right to Counsel
The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel. The right to counsel has been interpreted by the U.S. Supreme Court to mean the right to the assistance ofeffective counsel so as to ensure a fair trial. When an attorney's conduct is deficient and prejudices the criminal defendant, the criminal defendant may claim ineffective assistance of counsel.
In Strickland v. Washington, the U.S. Supreme Court set out a two-prong test establishing the criteria that a defendant must prove to win an ineffective assistance of counsel claim:
- The attorney's performance must have fallen below an objective standard of reasonableness
- The criminal defendant must have been prejudiced by the attorney's deficient performance — i.e., there must be a reasonable probability that the result of the trial (or other legal proceeding) would have been different if the lawyer had performed adequately
If the criminal defendant can demonstrate both of these things, the guilty verdict will be overturned. However, demonstrating both of these things is usually quite difficult.
Padilla's Arguments Before the US Supreme Court
Padilla argued that the when the Kentucky Supreme Court ruled against him, the court misapplied thecollateral consequences rule. According to Padilla, this rule governs the court's duties when accepting a guilty plea, not an attorney's duties when representing a client.
Instead, the Strickland ineffective-assistance-of-counsel test should have guided the ruling in this case. Padilla contended that he met the two-prong Strickland standard because Padilla's lawyer performed deficiently, thereby prejudicing Padilla. Had Padilla known that he would be deported based on his guilty plea, he would have gone to trial instead of pleading guilty.
Further, Padilla maintained that even if the Kentucky Supreme Court did use the appropriate standard and this decision should turn instead upon whether deportation is a direct or collateral consequence of a conviction, the court was incorrect in deeming deportation a collateral consequence. For many immigrants, the threat of deportation is much more significant than any criminal punishment.
Finally, Padilla reasoned, even if the deportation is merely a collateral consequence, this particular case still must be analyzed as an ineffective-counsel issue under Strickland. Because Padilla's attorney specifically gave him incorrect information rather than simply not answering Padilla's immigration question, the Sixth Amendment right to counsel should have been implicated and the Strickland test applied.
Commonwealth's Arguments Against Ineffective Assistance of Counsel
In response, the Commonwealth of Kentucky argued that the Strickland test should not apply in Padilla's case because the Sixth Amendment does not entitle a defendant to legal advice from his or her criminal defense attorney regarding potential immigration consequences. The Sixth Amendment protections only reach advice about direct consequences of a conviction, not collateral consequences. The commonwealth alleged that deportation is a collateral consequence. In making this distinction, the prosecution pointed out that Commonwealth of Kentucky courts only have jurisdiction over the criminal charges, not over federal deportation matters.
Instead, the state contended that the court's only duty to Padilla was to ensure that his guilty plea was voluntary. A voluntary plea only requires that the defendant understand the direct consequences of his conviction. Accordingly, misunderstanding the consequences his plea would have on his immigration status was irrelevant, being merely a collateral consequence that would not have affected the voluntary nature of the plea.
Finally, the state claimed that if the Supreme Court finds in Padilla's favor, it will impose an impractical and overly burdensome duty on attorneys to inform criminal defendants of every possible collateral consequence of their guilty pleas.
Supreme Court Decision Expected in Late 2010
The Supreme Court will not issue its decision in Padilla until sometime later this year. During oral arguments, the justices not only appeared sympathetic to Padilla's plight, but also seemed concerned about broadening the scope of potential consequences from trial strategy decisions that an attorney must foresee and discuss with his or her client in order to satisfy the Sixth Amendment.
In the meantime, many noncitizen criminal defendants in the U.S. may find themselves in the same predicament as Jose Padilla. Immigration law is very complicated and attorneys who do not regularly practice in the field do not always understand it. For anyone who is concerned about the immigration consequences of a criminal charge, it is important to work with an attorney experienced in both criminal defense and immigration law.
