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As 2010 draws to a close, one cannot help wondering if the Supreme Court’s landmark decision in Padilla v. Kentucky1 will usher in the new era that some commentators predicted. The Court held that the possibility of deportation is such an integral part of a penalty that in determining if a defendant has received reasonably professional assistance of counsel,2 there is no functional distinction between whether it is a direct or collateral consequence. That holding seemingly sent a powerful message to the nation’s criminal defense bar: the accused are entitled to understand serious consequences of a conviction. Never before had the Court ruled that Strickland could be violated by a lawyer’s failure to advise a client about a consequence of conviction that is not part of the court-imposed sentence. As one prominent lawyer noted “[t]he Padilla decision promises to transform the landscape of criminal representation in this country by requiring consideration of collateral consequences at the front end of a criminal case.”3
There is no doubt that elevating consideration of collateral consequences could trigger a long overdue paradigm shift in the role of defense counsel. If Padilla is extended to encompass advisement on the significant disabilities that can flow from a conviction, attorneys will have to master a burgeoning body of law. It is hard to see a distinction between deportation and other life-altering consequences such as the loss of family rights, housing, or employment. In a system driven by harsh mandatory sentences and plea bargaining, it is only fair and proper that an accused person understand exactly what fate lies ahead if she is found guilty of a particular charge. Indeed, aggressive and innovative advocacy may foster more creative and zealous plea advocacy to avoid certain consequences. It may also result in more defendants opting to gain exoneration at trial, rather than face the full consequences of a guilty plea. Surely mere consideration of the penal sanctions attendant to a particular charge is not enough. No matter the challenge, the object is the same: the least burdensome result for clients. With a determined effort Padilla can and should give rise to better, more effective, and more creative representation.
But, the promise of this decision may be short-lived. In the few months since the decision, it is clear that if it is to pave the way for new competencies it will likely not be because of the efforts of prosecutors or trial courts. Already prosecutors are resorting to a favorite tool for eviscerating fundamental rights: a blanket waiver. Consider this language from a recent plea agreement:
- Defendant recognizes that pleading guilty may have consequences with respect to the defendant’s immigration status if the defendant is not a citizen of the United States. Under federal law, a broad range of crimes are removable offenses, including the offense(s) to which defendant is pleading guilty. Removal and other immigration consequences are subject to a separate proceeding. However, defendant understands that no one, including the defendant’s attorney or the district court, can predict to a certainty the effect of the defendant’s conviction on the defendant’s immigration status. Defendant nevertheless affirms that the defendant wants to plead guilty regardless of any immigration consequences that the defendant’s plea may entail, even if the consequence is the defendant’s automatic removal from the United States.
This provision, which is incorporated in “fast track” plea agreements in the District of Arizona, is nothing more than an all-purpose waiver of an accused person’s right to know the actual consequence of the plea. It is a calculated maneuver to utilize prosecutorial control of the plea process to effectively circumvent the Supreme Court’s holding in Padilla.
But it does not have to be. Lawyers should resist these kinds of provisions. They should challenge them. Creative litigators and policymakers should not let the Padilla opportunity slip way. In the final analysis, the defense bar has unilateral power to render these provisions moot simply by acquiring the knowledge necessary to properly, fully, and intelligently advise clients of the true consequences of their actions. Prosecutors, with the acquiescence of the courts, may try every means to water down the import of Padilla. Defense attorneys can prevent that injustice. In an era of proliferating collateral disabilities, justice and fairness require that clients must be informed of all of the consequences they face, irrespective of whether those consequences flow from the penal statutes or other laws or regulations that impose sanctions.
Unfortunately, it is hard enough to master criminal procedure, penal law, evidence, search and seizure, and all of the other skills and disciplines that are within the traditional purview of the defense lawyer. As Justice Alito’s concurrence noted, immigration consequences are an often indecipherable web of complexity and nuance.4 Collateral consequences in other areas are no less intricate and difficult to decipher. The defense bar should embrace this challenge. And NACDL is determined to help.
First, NACDL has taken several steps to promote training on immigration consequences. On September 7, 2010, NACDL conducted a free online training program, Padilla in Practice: Your Duty to Advise Clients of Immigration Consequences. The program, which featured a panel of experts on the immigration consequences of criminal conviction, was viewed live by more than 250, and has since been downloaded by at least as many. The program remains available on the NACDL website.5 In addition, NACDL now includes training panels on the subject at its live CLE programs, such as the Drug Defense Seminar convened this past November. Videos of those programs are available to the defense bar through the NACDL’s CLE Institute.
In addition, NACDL will be partnering with immigration defense groups and other major organizations, such as the National Legal Aid and Defender Association, to pursue a wide range of efforts to both expand the reach of Padilla and make sure both public and private criminal defenders have access to the education, training and resources to properly equip them to advise and advocate for the accused.
The effort to educate the bar on the panoply of collateral consequences does not stop with immigration matters. NACDL is working with the ABA on a major project to catalogue collateral consequence in all 50 states and the District of Columbia. The object of this daunting endeavor is to provide a universally available online resource that will provide a comprehensive compendium of every collateral consequence from every potential conviction. When the project is completed, NACDL will convene a major training session that will be broadly available via an array of media. Currently, the ABA seeks input from the defense bar to ensure that the information is fully inclusive. NACDL members can and should participate. No group is better equipped to ensure that the project is fully informed by the defense perspective. To help with this important effort, visit the special page6 on the NACDL website.
In the final analysis, the promise of Padilla — a criminal justice system in which all accused persons have the opportunity to make an informed decision about their future — rests in the hands of the defense. The defense bar should neither squander nor waive this opportunity.
Notes
- Padilla v. Kentucky, 130 S. Ct. 1473 (2010).
- Padilla, 130 S. Ct. at 1482; see also Strickland v. Washington, 104 S. Ct. 2052 (1984).
- Margaret Colgate Love & Gabriel Chin, Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction, 34 THE CHAMPION 18, 23.
- Padilla, 130 S. Ct. at 1488 (Alito, J., concurring).
- www.nacdl.org/public.nsf/events/ NACDLcle_Webcast_padillastream?OpenDocument.
- www.nacdl.org/ABAcollateral consequencesstudy.
