Padilla v. Kentucky

 Posted on March 31, 2010 in Uncategorized

Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward (as it is in many of the scenarios posited by JUSTICE ALITO), a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.

That's the meat of the holding from Padilla v. Kentucky, decided today.

Texas courts advise defendants pleading guilty that their plea may result in adverse immigration consequences. Until today, that's all that has been required by the law. Thorough and competent criminal-defense lawyers would determine the immigration consequences and advised their clients of them, but not all criminal-defense lawyers are thorough and competent, and it's much easier to get the Padillas of the world to plead guilty if you gloss over those nasty consequences.

The gloss is no longer enough. Now, if the law clearly requires deportation, the law (and not just ethics and conscience) requires the lawyer to tell the client. It's about damn time.

(Justice Alito and Chief Justice Roberts, concurring, would hold that a lawyer is ineffective when he misleads a defendant regarding the removal consequences of a conviction, but not that the criminal lawyer has a duty to give immigration advice beyond, "this could have immigration consequences; talk to an immigration lawyer"; Justice Scalia and Justice Thomas, dissenting, would hold, "even assuming the validity of" Gideon and Strickland, that immigration consequences are collateral, so that even affirmative misadvice about immigration consequences does not render assistance ineffective.)

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