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March 26, 2011

"Why Padilla Doesn’t Matter (Much)"

The title of this post is the title of this new piece by Professor Darryl Brown, which is now available via SSRN. Here is the abstract:

The U.S. Supreme Court’s decision in Padilla v. Kentucky might herald a breakthrough in the quality of representation provided to immigrants charged with crimes, and more broadly an advance in the Court’s recognition of the role both of plea bargaining in criminal adjudication and of the severe collateral consequences often triggered by convictions for citizen as well as alien defendants.  There are good reasons to suspect, however that Padilla’s practical impact will be modest; for many non-citizen criminal defendants, including probably Jose Padilla himself, its impact will be non-existent.  The Padilla holding seeks to ensure that defense lawyers are aware of severe collateral consequences that attach to convictions, in order both to inform their clients of those consequences to inform plea bargain negotiations among attorneys.  The Court speculated that attorneys then may be able to craft alternative criminal or immigration-law outcomes through creative bargains.

But the problem for many non-citizen defendants like Mr. Padilla is not simply -- and not primarily -- their lawyers’ unfamiliarity with immigration law; it is the content of the substantive criminal law, of sentencing law, of the sources of non-criminal law that define collateral consequences and, finally, of limited procedural possibilities for avoiding or mitigating those consequences.  None of that law changes with Padilla.  As a result, defense lawyers’ (and even prosecutors’) abilities to negotiate around criminal law or immigration law, and to achieve more favorable or just outcomes for defendants are not notably improved.  Adding to those limitations, the pervasive inadequacies of indigent criminal defense, especially in state courts, are unaffected by Padilla, further diminishing the hope that attorneys’ awareness of collateral consequences will improve client representation and case outcomes.

March 26, 2011 at 12:12 PM | Permalink


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There's also the reality, of course, that in many cases prosecutors will have no desire to craft a deal without immigration consequences. And then there is the entire issue of Strickland prejudice which afaik Padilla still hasn't won on (nor do I really expect him to).

Posted by: Soronel Haetir | Mar 26, 2011 1:08:54 PM

Where I practice as a prosecutor, we attempted to do a joint CLE with the PD's office on Padilla and how we can work together so that non-citizens can be properly advised.

We were told the following:
1. Immigration consequences are your problem not ours.
2. If the conviction gets sets aside because we didn't advise them properly, that's your problem.
3. Since the remedy is setting aside the conviction, again, that's your problem, and we've got a good result for our client.

And now the PD's office wonders why we won't give plea agreements for non-citizens.

Posted by: josh | Mar 27, 2011 4:06:32 PM


I understand that may be annoying from your point of view, but if you really want to arrange pleas with non-citizens, it seems like it would be easy enough to put notification of the immigration consequences in the plea agreement itself and ask the judge to specifically include it in the plea colloquy (with a specific mention that if the client didn't understand, he could take a break to discuss it with his counsel). I think that would almost certainly cover you against any further challenges.

Posted by: Anon | Mar 28, 2011 10:38:36 AM

Or, Anon, we could expect the attorneys provided for the defendant to properly advise their clients of such consequences. If the public defenders refuse to do their job, and the last I checked properly advising clients of the consequences of their plea falls right in the middle of their job duties, what is their purpose? Simply putting in the plea is often not enough-then a few years later they simply claim not to understand what they were doing, it all went by so fast, ect.

A couple of months ago, as part of this refusal of the PD to do their jobs, we tried a defendant to jury on an A Felony as opposed to the offer to a C Felony that would come with the assurances of a proper advisement. Instead of 4-6, he got 24 years. I have no problem trying these cases. It just seems a shame that the PD's think that by simply pushing everything back on us they are doing their client any sort of justice.

Posted by: josh | Mar 28, 2011 8:36:07 PM

That's a shame to hear, Josh. From what I could gather about immigration law (which was peripheral to my Padilla research) advising about immigration consequences is not nearly as difficult as the Padilla dissenters/ concurrers made it out to be. I also hate to hear that getting a client off on ineffective assistance is considered a "win" for the PD. It makes a certain amount of sense if you're just outcome oriented, but it strikes me as being about on par with feeling good about getting away with a brady violation when you know the defendant was guilty.

Posted by: Gray Proctor | Mar 29, 2011 9:31:22 AM

Coming from the prosecution side of the house, all of our plea agreements (even pre-Padilla) advise that a plea could effect their immigration status.

Posted by: Breaker 1-9, it's a Convoy | Mar 29, 2011 9:16:09 PM

Thank you for sharing,it is very helpful and I really like it!

Posted by: Big pony | Apr 11, 2011 6:15:18 AM

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