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February 28, 2012

"From 'Collateral' to 'Integral': The Seismic Evolution of Padilla v. Kentucky and Its Impact on Penalties Beyond Deportation"

The title of this post is the title of this notable piece authored by J. McGregor Smyth Jr., which is now available via SSRN.  Here is part of the abstract:

From the moment of arrest, people charged with crimes find themselves caught in a web of punitive sanctions, in danger of losing their jobs, homes, children, and right to live in this country.  Politicians over the past thirty years, eager to be “tough on crime” at the expense of being smart on crime, have piled layer upon layer of these “collateral” consequences on even a person’s most minor involvement in the criminal justice system.

As this web grew to overshadow the traditional criminal sanctions for most offenses, criminal courts and practitioners struggled to create legal justifications for ignoring it. The “collateral consequences” doctrine resulted.  Arising out of Fifth Amendment challenges to convictions on the theory that courts had not adequately notified people of this web at plea or sentencing, this doctrine draws a sharp but false distinction between “direct” consequences of criminal proceedings (such as incarceration) and “collateral” consequences (such as deportation).

In a move last Term that shocked commentators and practitioners alike, the Supreme Court ignored decades of lower court case law to effectively repudiate this doctrine — which has been one of the most dominant (and most harmful) legal fictions of the criminal justice system.  In Padilla v. Kentucky, the Court held that to provide effective assistance of counsel, a criminal defense attorney has an affirmative duty to give specific, accurate advice to noncitizen clients of the deportation risk of potential pleas. The majority’s analysis, however, reaches far beyond advice on immigration penalties, extending to any and all penalties intimately related to criminal charges.  The Court’s recasting of Sixth Amendment jurisprudence will have significant ripple effects, leaving a rich set of legal issues for the courts to resolve in the coming years.  These issues include those related to post-conviction relief, the Ex Post Facto Clause, Eighth Amendment definitions of punishment, the adequacy of defense funding, the expansion of the right to a jury trial, and the extension of the right to counsel.

This Article examines the practical effect of Padilla for criminal defense attorneys currently working with clients on pending cases....  This Article uses the legal reasoning of Padilla to outline a structure for approaching the daunting process of identifying and adequately advising clients about the wide range of penalties resulting from criminal justice involvement. The Article focuses not on post-conviction relief, but on productive and proven strategies for improved trial level advocacy going forward.

February 28, 2012 at 08:58 AM | Permalink


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The ABA counted 50,000 civil consequences of a criminal conviction. The defense bar should prepare a handout or website listing all of them. Any defendant suffering any without warning from lawyer has a case of legal malpractice to retrieve the value of the damage from lawyer carelessness. After this case decision, the negligence is per se.

Posted by: Supremacy Claus | Feb 29, 2012 7:37:42 AM

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