Padilla v. Kentucky and the Role of Criminal Defense Representation

May 03, 2011 (Press-News.org) Padilla v. Kentucky and the Role of Criminal Defense Representation

Since the U.S. Supreme court decided Padilla v. Kentucky in early 2010, the role of criminal defense representation related to counseling clients about the broader consequences of criminal convictions has been under scrutiny. The American Bar Association (ABA) used Padilla as a starting point to form a task force in late 2010 to study the impact of the case.

While the outcome of the study could directly affect how current and past criminal cases are handled, the main practice consideration for criminal defense attorneys, particularly in New York, is to understand and explain conviction consequences more fully to their clients.

Padilla v. Kentucky

In Padilla, the Court found that a criminal defense attorney exhibited "constitutionally deficient" representation when he did not counsel a non-citizen client about the deportation consequences of a guilty plea.

Jose Padilla resided in the United States as a legal permanent resident for more than 40 years. He was even a recognized Vietnam War veteran. Padilla was charged with transporting marijuana in Kentucky, which put himself at risk for deportation because he was not a citizen. Padilla's lawyer advised him to enter a guilty plea under the assumption that his many years living in the U.S. would offset his immigrant status. Immediately following his guilty plea, Padilla was ordered to be deported.

Padilla claimed during his post-conviction hearing, which is where a defendant asks to have a conviction overturned, that his Sixth Amendment right to effective assistance of counsel was violated because of his attorney's advice was incorrect.

Although the Kentucky Court of Appeals sided with Padilla, the Kentucky Supreme Court denied Padilla's request to set aside his guilty plea. They stated that the Sixth Amendment "does not protect defendants from erroneous deportation advice because deportation is merely a 'collateral' consequence of a conviction." The U.S. Supreme Court, however, decided in favor of Padilla. The Court held that criminal defense attorneys must advise their clients when a criminal plea bears a risk of deportation, because of the seriousness of this consequence due to pleading guilty to a criminal charge.

Padilla's conviction was therefore overturned because his lawyer did not inform him about the likelihood of deportation after pleading guilty. This advice was deemed ineffective, which did infringe on Padilla's Sixth Amendment rights.

Since the opinion was published in March of 2010, the case has been cited in other criminal convictions where guilty pleas, even by U.S. citizens, resulted in negative consequences like termination of employment, loss of child custody, removal from housing and as evidence in civil lawsuits. This shows that while the Padilla ruling specifically addresses lawyers representing immigrant clients in criminal proceedings, the case has had a wider impact on criminal defense representation and expectations as a whole.

ABA Task Force

In December of 2010, the ABA's criminal justice section formed a task force to study the impact of Padilla v. Kentucky and related rulings on the practice of criminal defense. The task force will not only focus on the client advising obligations the Padilla case places on criminal defense attorneys, but it will also address how lawyers can achieve the broader role and responsibilities now expected of them.

The ABA criminal section chair, and member of the task force, is law school professor Bruce Green, who stated in an interview with the New York Law Journal that "Padilla raised the level of consciousness. It has reminded lawyers that they must learn about, and advise clients about, the impact of a guilty plea on their immigration status and in other significant ways beyond sentencing."

Green also indicated that the group has gathered significant data on criminal cases that resulted in specific consequences directly related to a plea or conviction.

The task force will continue to analyze what further assistance lawyers can give to advise clients about any possible consequences, but in the meantime Green thinks that "Criminal defense lawyers might help by broadening the scope of their representation beyond the criminal case or by making referrals to, and collaborating with, other professionals. The task force will study how lawyers and their offices address these situations, often in the face of time and resource limitations."

Practice Considerations

Specifically in New York, the Padilla v. Kentucky decision has increased the number of requests to overturn convictions and apply Padilla retroactively because of insufficient legal advice about entering guilty pleas and immigration consequences. It has also caused both prosecutors and defense attorneys to offer up and seek out more options and information about what a particular conviction may do to a non-citizen living and working in the U.S.

While Padilla has had a direct impact on practicing criminal defense in New York, it is unknown whether the results of the task force will be as profound. The main outcome may be that defense lawyers should advise clients about any legal or non-legal consequences, such as termination of public housing, when entering a guilty plea, which is a notion that has not yet been applied in a New York court.

For criminal defense attorneys, the most important lesson both Padilla and the ABA task force teaches is that defense lawyers need to understand their clients' situations and be willing to fully explain the consequences of any pleas or convictions before they are entered. If you were recently charged with a crime and are either a U.S. citizen or non-citizen in New York, contact an experienced New York criminal defense attorney with immigration knowledge to advise you about all possible consequences and handle your case properly from the start.

Article provided by Mark J. Sacco
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