In March 2010, the United States Supreme Court released an opinion that has serious ramifications for criminal defense attorneys. The name of the case is Padilla v. Kentucky, 130 S.Ct. 1473. The issue in the case was whether, as a matter of federal law, a criminal defense attorney has a duty to advise a non-citizen client that a guilty plea could result in deportation. Typically, a criminal defense attorney was wise to advise her client about possible deportation following a guilty plea; however, she had no such duty because deportation was considered a collateral consequence. See State v. Jimenez, 987 S.W.2d 886, 888-889 (1999). A collateral consequence is a secondary consequence that cannot be imposed by the trial judge of the court where the criminal case was pending. Id., at 888-89.
Before looking at the Court’s holding and rationale, let us look briefly at the case’s background. Jose Padilla was born in Honduras but immigrated to America and became a lawful permanent resident. He served honorably in Vietnam. However, he was caught transporting a large amount of marijuana in Kentucky. His attorney allegedly advised him that a guilty plea to the drug charge would not result in deportation since Padilla had been in the country so long. Padilla pled guilty. The advice was incorrect and Padilla faced deportation. Padilla appealed his conviction to the Kentucky Supreme Court on the grounds that the incorrect advice violated his Sixth Amendment right to effective assistance of counsel.
The Kentucky Supreme Court upheld the conviction holding that Padilla’s attorney did not provide ineffective assistance of counsel since deportation is a collateral consequence. Padilla appealed his conviction to the United States Supreme Court.
The United States Supreme Court reversed Padilla’s conviction holding that deportation is not a collateral consequence and that Padilla’s attorney provided ineffective assistance of counsel under its previous standard in Strickland v. Washington, 466 U.S. 668. Additionally, and more significantly, the Court held that all criminal defense attorneys have a duty to advise their non-citizen clients that deportation may be a consequence of a guilty plea. However, recognizing the complexities of immigration law, the Court limited its ruling somewhat by adding that where “deportation consequences of a particular plea are unclear or uncertain…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.” Padilla at 1484.
The Padilla opinion has serious and wide-ranging consequences for criminal defense attorneys that may go well beyond non-citizen defendants. Justice Alito, in his concurring opinion, expressed the concerns of many criminal defense attorneys. Although Alito agreed with the majority opinion because of the incorrect advice Padilla received, he also expressed prescient worries that Padilla could impose a duty on criminal defense attorneys to advise their clients about all potential consequences of a guilty plea. For example, Alito said Padilla may require criminal defense attorneys to advise their clients about how a guilty plea may result in “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, loss of business or professional licenses, severe damage to a defendant’s reputation and thus his ability to obtain future employment or business opportunities.” Id. At 1489. Justice Alito failed or forgot to mention the other collateral consequences of a guilty plea such as a divorce, mental anguish, illness, and so on.
Justice Alito’s concerns hit the nail on the head. Under Padilla, criminal defense attorneys may need to advise their clients about every single consequence that can arise from a guilty plea or risk providing ineffective assistance of counsel. That’s preposterous! Criminal defense attorneys cannot possibly know every potential consequence of a guilty plea. What’s more, criminal defense attorneys do not even know all the possible legal consequences of guilty pleas since that would require expertise in a number of areas of the law. For example, criminal defense attorneys would need to know business law to effectively advise a client whether a guilty plea would affect his business or profession. Similarly, criminal defense attorneys would need to know ERISA laws or the Uniform Code of Military Justice to know how a guilty plea might affect a serviceperson’s military benefits. Again, that is preposterous.
I am sure the majority in Padilla was simply trying to affirm a Constitutional principle, i.e., people in America, regardless of their legal status, have a Sixth Amendment right to effective assistance of counsel. However, Padilla appears to take that principle too far and imposes an unfair and unattainable legal duty on criminal defense attorneys. In short, in this criminal defense attorney’s respectful opinion, the Court needs to further limit and clarify its holding in Padilla.