Padilla v. Kentucky: Sixth Amendment & Deportation Advice

Introduction

This paper provides a review of the relevant literature concerning Padilla v. Kentucky,¹ discussing citizenship, deportation consequences, and similar predicaments in the American criminal justice system. It is this paper's thesis that the decision in Padilla has significant implications for defense lawyers, who must now become familiar with the complexities of immigration law or retain specialized counsel to assist them in this area. Established in Strickland v. Washington, the test for ineffective assistance of counsel is comprised of two parts: (1) defendants must first show that their counsel was constitutionally deficient, and (2) defendants must show that the deficiency prejudiced the result of their case.² In addition, cases involving guilty pleas require defendants to demonstrate that, in the absence of deficient counsel, they would have insisted on a trial.³

Furthermore, defendants enjoy the Due Process Clause protections that require judges and defendants to engage in a conversation concerning the potential consequences of a guilty plea, known as the "plea colloquy." This step is required before defendants are allowed to enter a valid guilty plea. According to Lang, "The plea colloquy is meant to ensure that the plea is knowing and voluntary. While not required by the Fifth Amendment, many states mandate that judges issue general warnings to defendants regarding the immigration consequences of a guilty plea."⁴

Following the decision in Padilla, several lower courts held that such general court warnings preclude defendants from demonstrating prejudice and prevent them from prevailing on an ineffective assistance of counsel claim in cases where there might otherwise be a violation of Sixth Amendment protections.⁵ To determine the current state of affairs, this paper reviews the relevant literature concerning Padilla v. Kentucky and its implications for the bar. A summary of the research and important findings is provided in the conclusion.

Literature Review and Synthesis

Even legal permanent residents who have been convicted twice for crimes of "moral turpitude" can be deported from the United States irrespective of their length of residency and irrespective of whether the crimes were felonies or misdemeanors.⁶ Moreover, the U.S. Citizenship and Immigration Service is empowered to deport any alien who is convicted of an aggravated felony at any point in time.⁷ These cases are far more common than many people might believe: during the period from 2000 to 2009, more than 920,000 people were deported from the United States as a result of their criminal status.⁸

In fact, the number of foreign nationals deported from the United States more than doubled in the decade preceding the Padilla decision.⁹ The process, however, is not automatic. The Citizenship and Immigration Service, immigration judges, and the Board of Immigration Appeals all have the authority to deport — or decline to deport — depending on the individual circumstances involved. According to Sarat, "Until the Supreme Court's decision in Padilla v. Kentucky (2010), that fact had been key to defining deportation as an 'indirect' rather than 'direct' sanction."¹⁰

In the Padilla case, the Supreme Court held that the Sixth Amendment requires defense counsel to inform any client who is not a citizen of the potential for deportation as a result of a conviction. Citing significant revisions of federal immigration law, the Court pointed out that deportation is currently "virtually inevitable" and "nearly an automatic result for a broad class of noncitizen offenders."¹¹ In its March 31, 2010 decision, the Supreme Court held that when defense counsel failed to inform noncitizen clients of the potential for deportation as a result of a conviction, this failure represented ineffective counsel violative of the Sixth Amendment. According to Ewald, the Padilla decision was "hailed by advocates as 'momentous' and a 'Gideon decision for immigrants.' The Padilla ruling has been greeted by supporters and detractors alike as a landmark in Sixth Amendment jurisprudence."¹²

In the past, noncitizens threatened with deportation could seek relief from various sources, including the courts, the Immigration and Naturalization Service (the predecessor to the Citizenship and Immigration Service), and the attorney general. However, as the result of a series of Congressional statutes, these avenues of relief have been sharply curtailed. Characterizing deportation as a "harsh" consequence and a "drastic measure," the Padilla Court determined that the automatic nature of deportation — resulting from criminal convictions — gives it such a "close connection to the criminal process" that defense attorneys must provide their noncitizen clients with advice concerning the potential for deportation as part of their Sixth Amendment duties, especially when plea bargain agreements are involved. The Court added such deportation advice to lawyers' Sixth Amendment duties while describing deportation as a sanction "uniquely difficult to classify as either a direct or a collateral consequence."¹³

Defendants in American courts who enter into plea bargains are protected by the Sixth Amendment right to effective assistance of counsel, which entitles defendants to the guidance of a competent defense lawyer, as well as the Fifth Amendment Due Process requirement that a valid guilty plea must be "knowing," "intelligent," and "voluntary."¹⁴ According to Lang, "These two rights, both well-established in Supreme Court jurisprudence, work in tandem to ensure that the adversarial process functions fairly, not only in trials, but in plea bargains as well."¹⁵

This issue has become even more important in recent years as the United States continues to seek viable solutions to illegal immigration. At present, there are between 10 million and 12 million illegal immigrants in the country, and the Immigration and Customs Enforcement agency currently processes around 400,000 cases related to removal or deportation pursuant to its law enforcement mandate.¹⁶ Moreover, following the Supreme Court's decision in Padilla, many noncitizens faced with a criminal conviction are in an untenable position due to the vagaries of the decision-making process. Gilroy advises that "the legal, adjudicative, and policy environment has become more difficult than any time in memory. Adjudications are unpredictable and hostile, with standards shifting almost day-to-day and adjudicator to adjudicator."¹⁷ Indeed, some analysts maintain that the decision in Padilla has "started a revolution" in ways that "fundamentally alter the concept of the criminal sentence" by eradicating the distinction between direct and collateral consequences. Others contend that Padilla is likely to alter very little because "the opinion is narrow, the consequence of non-compliance is small, and the workload of the criminal defense bar, or at least the indigent defense bar, is already unmanageable."¹⁸ Taken together, these trends indicate that the Padilla case was decided at an important juncture in American history, where debates over immigration reform continue to be played out and the need for predictability in judicial decisions has become more important than ever.

Analysis of the Padilla Decision

The defendant in the Padilla case, Jose Padilla, was a licensed truck driver living and working in California. Although he was born in Honduras, Padilla had lived as a lawful permanent resident of the United States for more than 40 years at the time of his criminal charges. When Padilla's tractor-trailer was stopped and searched in Kentucky, law enforcement authorities discovered large amounts of marijuana. When Padilla consulted with his counsel, he was told that because he had lived in the country for so long, there was no danger of deportation as a result of a conviction. Based on this advice, Padilla accepted a plea bargain in which he would plead guilty to certain charges and receive a total sentence of 10 years, with the last 5 years served on probation.¹⁹

The legal advice provided to Padilla, however, was in error. Convictions for drug offenses are deportable offenses pursuant to federal law in general, and deportation is mandatory for drug trafficking convictions. Murphy reports that "criminal law in the United States is a harsh and unpredictable system for noncitizens. In the first paragraph of the opinion, the Court observes that 'Padilla's crime, like virtually every drug offense except for only the most insignificant marijuana offenses, is a deportable offense.' Given the state of the law, the Court stressed that deportation for noncitizens who commit a removable offense is 'practically inevitable,' barring a decision by the Attorney General to exercise his limited discretionary power to cancel removal."²⁰ Based on the erroneous legal advice provided by his defense attorney, Padilla petitioned for relief, maintaining that his attorney had not provided effective counsel and that he would have opted for a trial had the potential for deportation been made known. A circuit court in Kentucky initially denied Padilla's petition; however, an appeals court remanded the case to the trial court for an evidentiary hearing.²¹

The Supreme Court of Kentucky reversed the appeals court's decision, holding that because "collateral consequences are outside the scope of the guarantee of the Sixth Amendment right to counsel," Padilla was not entitled to post-conviction relief. Padilla then appealed, and the U.S. Supreme Court agreed to hear the case.²² The Supreme Court agreed with Padilla's assertions concerning the lack of sound advice from his lawyer, pointing out that "constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation."²³ In support of their decision, the Court noted that "[O]ur longstanding Sixth Amendment precedents, the seriousness of deportation as a risk of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less."²⁴

The Padilla case attracted a great deal of interest from the defense bar, and amicus briefs were submitted by the American Bar Association as well as a number of law professors, all calling for a reversal of the defendant's conviction. Conversely, the U.S. Solicitor General and more than half (28) of state attorneys general called for the Padilla conviction to be affirmed. They urged the Supreme Court to confirm that deportation is included among the so-called "collateral" consequences that can result from a criminal conviction — consequences that can also include restrictions on public housing and benefits, employment, firearms rights, military service, voting rights, jury eligibility, and other rights and privileges concomitant with citizenship.²⁵

Because the majority of these restrictions are adjudicated by other authorities and agencies, most courts had held that attorneys are not required to advise their clients of these civil penalties prior to pleading guilty. These issues became salient in the Padilla case because the standards for effective legal counsel had historically been applied to "direct" consequences only, with lawyers' responsibilities to their clients limited to the penalties imposed by the sentencing court in the instant case. In rejecting Padilla's petition, the Kentucky circuit court pointed out that "Padilla's counsel does not make a deportation decision and neither does this Court."²⁶

There were other issues advanced in the Padilla case that have significant implications for similarly situated defendants. The amicus briefs from state attorneys general emphasized the importance of the plea bargaining system, describing it as "the backbone of the U.S. criminal justice system." The brief from the Louisiana attorney general noted that the overwhelming majority (approximately 95%) of all state felony convictions result from plea bargains.²⁷ Since collateral sanctions are not defined as punishments, such plea bargains had previously been considered legitimate even when defendants were not informed of potential civil penalties. The Louisiana attorney general's brief also stressed that requiring counsel to inform noncitizen defendants of the immigration consequences of a conviction would conflate the distinction between direct and collateral consequences and would "likely break the back of the plea agreement system."²⁸ The outcome of such a blurred distinction, the brief maintained, would adversely affect the finality of plea bargaining agreements.

The decision by the Supreme Court was not unanimous. Justice Stevens wrote the opinion for the five-justice majority, which held that the Sixth Amendment requires defense lawyers to provide their noncitizen clients with information concerning the potential for deportation as a result of a criminal conviction. The Supreme Court remanded the case to the Kentucky courts to determine whether Padilla's plea bargain agreement was substantively prejudiced by his lawyer's failure to advise him of these potential consequences. Justice Stevens's majority opinion highlighted four main conclusions:

First, the Court noted that because of statutory changes expanding the list of deportable offenses and restricting the power of judges and the attorney general to lift this sanction, deportation is now "virtually inevitable for a vast number of noncitizens convicted of crimes" and is "nearly an automatic result for a broad class of noncitizen offenders."²⁹ Deportation is not only an "integral part" of the penalty for such defendants, but "sometimes the most important part."³⁰

Second, the Court concluded that Padilla's lawyer failed the ineffective-counsel standard established in Strickland v. Washington (1984). Under the first part of Strickland's two-prong test, defense counsel must have been deficient "below an objective standard of reasonableness." The Court relied on publications by the American Bar Association and other organizations as indicators of professional practices and responsibilities, observed that the removal consequences of a guilty plea "could easily be determined from reading the removal statute," and concluded that Padilla's counsel should have advised him of his certain deportation. Rejecting the U.S. Solicitor General's recommendation that only misadvice be prohibited, the Court warned that a rational defense attorney might otherwise "remain silent on matters of great importance."³¹

Third, the Court concluded that deportation is "unique."³² Because of its severity — a "drastic measure" with "harsh consequences" — and its nearly automatic character, deportation has a "close connection to the criminal process" that makes it "uniquely difficult to classify as either a direct or a collateral consequence."³³ The majority maintained that its holding did not disrupt the traditional division between direct and indirect penalties, yet intriguingly did so while denying that the Court itself had ever "applied a distinction between direct and collateral consequences" in Sixth Amendment cases.³⁴

Fourth, the Court rejected the concern that ruling for Padilla would unsettle the law and practice of plea bargaining. After all, counsel in many jurisdictions had already been required to provide such warnings under statutory and judge-made law. Withdrawing a plea would still be legally difficult and tactically risky, since the best outcome for a convicted person challenging a plea is the opportunity to face the charges anew — and possibly draw a tougher sentence. Indeed, the majority reasoned that prosecutors may find their negotiating position strengthened where defendants understand they are negotiating under the "threat of deportation."³⁵ By suggesting that prosecutors use deportation as leverage in plea negotiations, the majority sought to answer the practical concerns of the state attorneys general while underscoring the Court's conclusion that deportation is not only a de facto punishment but a particularly important one.³⁶

In a concurring opinion joined by Chief Justice Roberts, Justice Alito rejected the majority's "dramatic departure" from precedent and cautioned that "a major upheaval in Sixth Amendment law" would result.³⁷ His disagreement with the majority was less pronounced than these admonitions might suggest, however. Justice Alito agreed that Padilla's counsel's erroneous guidance had been constitutionally defective, and noted that attorneys must provide a general warning that "a criminal conviction may have immigration consequences."³⁸ According to Love and Chin, "This means there were actually seven votes for some form of deportation-notice requirement."³⁹

Justice Scalia argued in a dissent joined by Justice Thomas that the problem should be resolved through federal and state legislation rather than a judicial decision, characterizing the majority's approach as using "a sledge when a tack hammer is needed."⁴⁰ Nevertheless, the dissenting justices concurred that the law should provide Padilla with some level of relief. Justice Scalia posited that the Due Process Clause might provide a superior basis for Padilla's claims if he had argued that his attorney's misadvice meant his plea was not "knowing and voluntary."⁴¹

Conclusion

In 2010, the U.S. Supreme Court held in Padilla v. Kentucky that defense attorneys' failure to advise their noncitizen clients of the potential for deportation as a result of a guilty plea constitutes ineffective assistance of counsel in violation of a defendant's Sixth Amendment rights. This decision has assumed new importance and relevance as the United States continues to grapple with challenges surrounding illegal immigration, particularly in the aftermath of September 11, 2001 and in the context of rising threats from fundamentalist organizations worldwide. The decision in Padilla means that the test for ineffective assistance established in Strickland v. Washington now includes the requirement for defense counsel to become knowledgeable about the complexities of immigration law, or to hire another attorney who specializes in this area, in order to ensure that clients receive the timely and accurate guidance they need to make informed decisions about the implications of plea bargain agreements. In the final analysis, it is reasonable to conclude that the Padilla decision represents a step in the right direction to ensure that everyone — including noncitizen defendants — has access to the information necessary to protect their best interests.

References

Atkins, K. (2010). Defense Counsel's Duty to Warn About . . . Everything? Lawyers Weekly USA, November 8.

Borden, Jeremy. Immigrants Take Guilty Pleas without Lawyers, Face Deportation. Pittsburgh Post-Gazette, A-6, February 3, 2013.

Brief for States of Louisiana et al. 2009: 9; Padilla v. Kentucky.

Brink, Malia. A Gauntlet Thrown: The Transformative Potential of Padilla V. Kentucky. 39 Fordham Urban Law 1, 39 (November 2011).

Ewald, Alec C. Deportation, Effective Counsel, and Collateral Sanctions: Padilla V. Kentucky (2010). 32 Justice System Journal 2, 235 (May 1, 2011).

Gilroy, Marilyn. Immigration Law Is Hot Topic at Law Schools. 22 The Hispanic Outlook in Higher Education 7, 43–45 (January 9, 2012).

Lang, Danielle M. Padilla V. Kentucky: The Effect of Plea Colloquy Warnings on Defendants' Ability to Bring Successful Padilla Claims. 121 The Yale Law Journal 4, 944 (January 2012).

Lore, M. (2010). Attorneys Fear 'Padilla' Means More Work. Minnesota Lawyer, April 19.

Love, M. C., and G. J. Chin (2010). Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction. 34 The Champion 18.

Murphy, Kara B. Representing Noncitizens in Criminal Proceedings: Resolving Unanswered Questions in Padilla V. Kentucky. 101 Journal of Criminal Law and Criminology 4, 1371 (Fall 2011).

Padilla v. Kentucky, 130 S. Ct. 1473, 1478 (2010).

Sarat, Austin. Law as Punishment/Law as Regulation. Stanford, CA: Stanford Law Books (2011).