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April 26, 2011
"Making Padilla Practical: Defense Counsel and Collateral Consequences at Guilty Plea"
The title of this post is the title of this new piece by Professor Gabriel Chin, which is now available via SSRN. Here is the abstract:
This essay, part of the 2010 Wiley A. Branton Symposium at Howard Law School, addresses some of the practicalities of making the Supreme Court's decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010) an operational reality. Padilla held that defense counsel have an ethical obligation to advise their clients of the possibility of deportation when pleading guilty. The inescapable logic of Padilla is that counsel's duty will extend to warning about other serious collateral consequences as well. Putting more demands on overburdened defense counsel raises a number of issues. First, how can public defenders, who are already challenged in providing basic representation add more to their duties? Second, how can defense counsel, who are not specialists in collateral consequences, be aware of the hundreds or thousands of potential collateral consequences which could apply in any given case?
This essay proposes that the standards of competent representation should continue to develop even if they are not always met because of governmental funding choices. In addition, introducing collateral consequences into plea negotiation will sometimes facilitate a better disposition of the criminal case. Although Padilla means more work for defense attorneys, it also promises better outcomes for clients. The essay also makes some suggestions about ways of identifying the most common and most serious collateral consequences in each state, to simplify the process of advising clients.
April 26, 2011 at 11:36 AM | Permalink
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The defense side still has yet to win the prejudice prong of Strickland on these cases. Until that happens I wouldn't get too excited about making such changes.
I also find it somewhat odd that the author recommends a course where ethical lapses are almost encouraged. Is the idea to try and get more clients off on IAC grounds rather than actually get the lawyers to meet their obligations?
Posted by: Soronel Haetir | Apr 26, 2011 12:04:01 PM