Commentary: Legal View: 'Padilla v. Kentucky,' one year later

By Francis D.Doucette

The Daily Record Newswire

Decisions from the U.S. Supreme Court often create a lot of buzz in the days or weeks following their release, only to fade into obscurity soon thereafter, especially if the holding is subsequently viewed as too narrow or the facts too bizarre and unlikely to be repeated.

Unlikely to suffer such a fate, Padilla v. Kentucky, 130 S. Ct. 1473 (2010), is a case that forces criminal defense attorneys to re-think what they do.

The facts are straightforward. Jose Padilla, born in Honduras, agreed to plead guilty on the advice of his counsel to multiple drug charges, including trafficking in marijuana, in Kentucky. The agreed on sentence was 10 years, with five years committed and the balance to be served on probation.

But in post-conviction proceedings, Padilla argued that his counsel was ineffective because he failed to inform Padilla that his plea on the most serious of the charges exposed him to "presumptively mandatory" deportation. 1483. Had he been informed of that consequence, Padilla said, he would have opted for trial.

Indeed, according to Padilla, his counsel committed an even more grievous error than mere failure to warn. He falsely assured Padilla that he "did not have to worry about immigration status since he had been in the country so long." 1478.

There was no dispute about the latter claim, Padilla having lived in the United States "for more than 40 years ... [and having] served this Nation with honor as a member of the U.S. Armed Forces during the Vietnam war." 1477.

As an offshoot of the ongoing national debate about immigration reform, the decision raises far more profound concerns than the inevitable fallout triggered by the giving of bad advice.

Its true subject emerges from the clash of the majority opinion of Justice John Paul Stevens, the concurrence of Justice Samuel A. Alito Jr. (which reads more like a dissent), and the genuine dissent of Justice Antonin Scalia.

That subject is the extent of duties owed to their clients by criminal defense attorneys, viewed in the light of the meaning and scope of the Sixth Amendment right to counsel.

Does that right encompass collateral consequences? Was Padilla's counsel obligated to warn his client about possible deportation prior to the tendering of the plea? Does that right, assuming it exists, go even further and require counsel not only to warn but to provide advice about how to minimize or counteract collateral consequences?

Or, on the other hand, should the Constitution be restricted to its literal language, as Scalia argued in Padilla? If so, the sole purpose of the Sixth Amendment right to counsel is to provide "the accused a lawyer 'for his defense' against a 'criminal prosecution'-- not for sound advice about the collateral consequences of conviction." 1494.

Featuring a seemingly sympathetic defendant (a Vietnam veteran at that) pitted against the chilling penalty of deportation, the decision reverses the judgment of the court below and holds that "counsel must inform her client whether his plea carries a risk of deportation." 1486.

However, after much spirited debate, the decision leaves unanswered most of the larger questions, in particular the ripple effects of the ruling and the new burdens imposed on criminal defense counsel.

Although the language and decisional history of the Sixth Amendment count for much, the key to understanding the quite different views of Stevens, Alito and Scalia is their grasp of the criminal defense attorney's role and fallibility in the modern world.

Referring to Padilla's plea counsel, Stevens is somewhat of a scold. "This is not a hard case in which to find deficiency," he chides. "Padilla's counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute." 1483.

Whether that statute, 8 U.S.C., Section 1227(a)(2)(B)(i), is as familiar or as accessible to general practitioners as Stevens suggests is an open question. Nor does Stevens broach the subject of the strength of the evidence against Padilla, in the event Padilla had pursued the trial he later regretted waiving. (To be sure, the severity of the consequence of deportation may make consideration of the evidence academic.)

Significantly, Stevens reminds us that "[p]leas account for nearly 95% of all criminal convictions," 1485, a statistic that sadly elicits no disapproval from him and no acknowledgment of a trial system that has become moribund. In his eyes, the criminal defense attorney is (or should be) primarily a plea negotiator.

"Counsel who possess the most rudimentary understanding of the deportation consequences of a particular criminal offense," he writes with condescension, "may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation." 1486.

In his long concurring opinion, Alito (joined by Chief Justice John G. Roberts Jr.) is considerably more charitable and forgiving to the practicing bar:

"Criminal defense attorneys ... are not expected to possess -- and very often do not possess -- expertise in other areas of the law, and it is unrealistic to expect them to provide expert advice on matters that lie outside their area of training and experience." 1487-1488.

Alito supports the holding of the majority "if the attorney misleads a noncitizen client regarding the removal consequences of a conviction." 1487. However, he disagrees that the attorney must explain or attempt to explain what those consequences might entail. In so differing, Alito maintains that the majority opinion minimizes the complexity of immigration law and ignores "the severity of the burden it imposes on defense counsel." 1490.

And to Scalia (joined in his dissent by Justice Clarence Thomas) the expertise of the criminal defense attorney in other areas of the law is simply irrelevant, not an issue, because warning or advising about collateral consequences is not what the Sixth Amendment commands the retained or appointed attorney to do.

Indeed, Scalia's adherence to the original language of the Constitution is so absolute that he bypasses the human factor altogether: In his dissent, not even a passing mention appears of Padilla's honored Vietnam veteran status or 40-plus years of residence in this country.

Reviewed one year later, the majority opinion of Stevens still seems a bit simplistic and naive, betraying a questionable awareness of how criminal defense attorneys typically interact with their clients, many of whom speak English poorly, if at all, and who often are beset as well by limited education, raw fear and distrust.

As a threshold matter, whose duty is it -- the client's or the attorney's -- to bring up the subject of collateral consequences? If the client is sullen or uncommunicative, does that end the matter, or is the attorney required to press on?

Must the immigration status of every client now be inquired of, before proceeding to trial or plea? If the client, confronted with that question, provides a confusing or less than credible answer about immigration status, is the attorney obligated to seek independent verification? From what source? At whose expense?

Even Stevens is forced to admit that "[i]mmigration law can be complex, and it is a legal specialty of its own." 1483. And, as Alito points out, "it may be hard, in some cases, for defense counsel even to determine whether a client is an alien." 1489.

Moreover, immigration law, still evolving and not always consistently applied, routinely relies on terms of art -- e.g., "crime involving moral turpitude," "aggravated felony" and even "conviction" -- whose definitions and nuances often defy clarity, even common sense.

Finally, if attorneys on a wide scale start using written releases or other forms to absolve themselves of responsibility and demonstrate they diligently inquired of immigration status or gave the warning that Padilla requires, will the courts frown on or respect those releases?

Collateral consequences may be viewed in several ways. Either they are distracting and unwelcome, or they present an opportunity to assist the client in unexpected ways that may minimize the risk the client will run afoul of the law again.

Thus, in that transformative role, the attorney becomes the healer, the cross-disciplinary problem solver, in addition of course to the defender against the criminal prosecution.

After Padilla, few attorneys would be so cavalier to tell a client: "I'll represent you on the criminal matter, but for everything else you're on your own." On the other hand, how eager should attorneys be to advise about matters outside their specialization?

Put another way, when an attorney has been retained or appointed to represent a client in a criminal matter, what is he obligated to do on behalf of that client?

The debate in Padilla may be viewed as an attempt to answer that question, with three Supreme Court justices submitting widely differing job descriptions for criminal defense attorneys in the 21st century.

Those three justices, of course, are well aware that collateral consequences are by no means confined to immigration issues, raising the specter of a floodgate of post-conviction litigation. Alito lists the following as examples: "civil commitment, civil forfeiture, the loss of the right to vote, disqualification from public benefits, ineligibility to possess firearms, dishonorable discharge from the Armed Forces, and the loss of business or professional licenses." 1488.

"All of those consequences are 'serious,'" Alito adds, "but this Court has never held that a criminal defense attorney's Sixth Amendment duties extend to providing advice about such matters." Id.

Does Padilla signal a shift, however slight, away from that tradition, promoting instead the model of the holistic attorney-client relationship?

No sensible person could approve of what happened to Vietnam veteran Jose Padilla, lulled by bad advice into believing that, after a few years of incarceration, he could remain in the country that had been his for more than 40 years. Despite his ill-informed and less than flattering view of criminal defense attorneys, Stevens saw fit to correct a serious injustice.

It remains to be seen how and when attorneys will be called on in the future to warn and advise about matters not the subject of their appointment or retention, but which dramatically impact the clients they represent.

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Francis D. Doucette is an attorney with the Committee for Public Counsel Services. The views expressed in the above piece are his alone.

Published: Thu, May 19, 2011

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