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April 1, 2010

Is the Padilla ruling as profound as it seems?

I have now had a chance to read closely all the Justices opinions in Padilla concerning the application of the Sixth Amendment to how an attorney advises a defendant prior to a plea (basics here), and I am now thinking that it is Justice Alito's concurrence that makes the majority's ruling so important and so potentially profound.  Let me explain

Though Justice Stevens opinion for the Court could be read broadly, it also makes express reference to the "unique nature of deportation."  This language alone would readily allow lower courts and others to assert that Padilla is a special rule for the special problem of deportation as a collateral consequence and thus the opinion is not relevant to any other types of conviction consequences.  But Justice Alito at the start of his concurrence stresses that there are lots and lots of other collateral consequences that are also "serious," and he therein suggests that Padilla should not be viewed as a narrow and limited opinion confined to a single consequence of a conviction. 

In addition, Justice Alito's concurrence calls the Court's decision "a major upheaval in Sixth Amendment law," and a "dramatic expansion of the scope of criminal defense counsel's duties under the Sixth Amendment."  The adjectives "major" and "dramatic" here should at the very least help defendants and others contend that Padilla is not merely a special rule for the special problem of deportation, but rather impacts how we view counsel's advice (or lack of advice) concerning any and all "serious" consequences that can follow a conviction.

April 1, 2010 at 10:16 AM | Permalink


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Yes Doug it is as important as you think. In fact, it is HUGE, and not just in the immigration area. While the Padilla holding is limited to deportation, it is notable that the Court stated that it has “never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland.” The Court’s analysis could therefore readily apply to other “particularly severe” collateral penalties “enmeshed” with criminal convictions, such as sex offender registration and civil commitment. In addition, the opinion seems to erode the traditional understanding of deportation as a purely civil penalty, in describing it (especially when based on a conviction) as "intimately related to the criminal process," and equating it with banishment or exile.
Some experts have expressed the view that this case may be the most important right-to-counsel decision since Strickland v. Washington in terms of systemic impact.

Posted by: margy | Apr 1, 2010 11:10:06 AM

It's not really profound in the sense that it will have a huge effect on the criminal justice system--I suspect most aliens know that conviction of a crime jeopardizes their ability to stay in America. What is profound about it is the distance from the language of the Sixth Amendment to the result here. A priori, if you just read the text of the Sixth Amendment, would this result obtain? Clearly not.

It really is amazing, immigrant criminals get taxpayer funded assistance on their immigration status. This is not a conservative court.

Posted by: federalist | Apr 1, 2010 11:28:09 AM

I agree that just how big a practical impact this case has depends on whether you view deportation as an exception or merely on a line ranging from "serious" to "not so serious" collateral consequences.

But I don't think that is what makes this decision profound.

As I have understood it, up until now the difference between a direct consequence of conviction (e.g., a sentence) and collateral consequence of a criminal conviction (e.g, deportation) has been a hard one. There was a bright and well defined line between the two. As I read it, seven members of the court have now said that this hard distinction between direct and indirect consequences of a conviction is nonsense. What the court is saying is that the distinction between an direct and indirect consequence of a conviction is akin to determining the point in a chain of causation where legal liability attaches. It's not something that exists a priori in nature but an exercise in judicial line drawing. The difference between a direct and collateral consequence of a criminal conviction is whatever a majority on the Supreme Court says it is.

Posted by: Daniel | Apr 1, 2010 11:38:07 AM

Considering how opaque the legal process is to most people, I do not doubt that there are many circumstances in which long-time resident aliens fail to understand the immigration consequences of a guilty plea -- particularly where the plea is for a first-time offense and/or of the "suspended sentence/time served, don't do it again" variety.

The sex-offender restrictions angle is an interesting one. My understanding is that such registration and residency requirements can be imposed retroactively. Do you have to warn your client that the government may later retroactively enact serious new collateral consequences of his or her conviction? Or do you just need to accurately describe the serious collateral consequences that exist at the time of the plea?

Posted by: Anon | Apr 1, 2010 12:44:36 PM

I agree it is big. For example, following up the sex offender registration example, I have already filed two motions for former clients in cases where I did not inform them they fall under the requirement that they register for ten years. The judge, prosecutor and I didn't think an attempted misdemeanor sex offense carried registration. When we found out it did I told the DA that my client didn't bargain for that and I messed up. The state did not oppose the motion to vacate the plea and we pleaded to something else.

The action, however, as the court recognized, is prejudice. For example, if you had been told the correct maximum sentence, instead of what the maximum is for someone with a different prior record level, would you have turned down the plea? Probably not.


Posted by: bruce cunningham | Apr 1, 2010 4:33:28 PM

This is a decision mandating the dream team be assigned to every low life defendant. Beyond that, this dream team must come with a telephone book size set of warnings, disclaimers, and disclosures. This set of disclaimers must reflect totally up to date analysis of current case law.

Because rent seeking is a synonym for armed robbery of the taxpayer, someone has to bring us relief from the thievery of these crooks running the law solely in the interest of the lawyer hierarchy. This tomfoolery is highly foreseeable once one understands the lawyer profession to be a self-dealing, land pirate, bunko operation.

The decision is also evidence that rent seeking trumps all political ideologies, attitudes and self-avowed beliefs.

Posted by: Supremacy Claus | Apr 1, 2010 7:02:28 PM


From the language of the Sixth Amendment one can readily derive this decision.

The decision, however, is much more practical than ideological. What this decision will do is eventually speed up deportation proceedings by ensuring that indigent aliens are adequately advised of their immigration status so there is not a collateral attack that could delay removal. The only place in the system where counsel is required by the Sixth Amendment is the trial court so as a matter of policy this makes sense.

As a matter of ideology, I'd probably go with the Chief & Alito.

Posted by: karl | Apr 1, 2010 8:11:53 PM

gimme a break, karl, no one thought that the Sixth Amendment guaranteed paid-for counsel until 1963. Now it guarantees advice in a state case on the federal consequences of a conviction? Whatever you say. You can say a lot of things in favor of Padilla--textual faithfulness is not one of them.

Posted by: federalist | Apr 1, 2010 9:16:44 PM


Nice rewrite of history. There was a mandate for counsel in many, if not most, felony cases (see the judiciary act of 1789 and any good treatise on the subject) at the beginning of the Republic and all Gideon did was mandate, what was already common practice in most stats, that for all crimes punishable by more than 180 days. The right to counsel is one of the few affirmative constitutional rights in our system (and you seem to argue that it should not be), and as such it has to be thought of differently than the negative rights found in most of the rest of the document. Put another way, trial counsel for the indigent has to be more than a guy with bar card who can fog a mirror (and I've seen several criminal defense lawyers over the years where it was questionable whether they could in fact pass that test).

As I stated, however, since we are talking about a collateral consequences, if I was on the Court I would the concurrence more fitting in to how I perceive the right to counsel then the majority. I think, however, the majority was right on policy grounds and don't see the majority opinion as that far off base with the Scottsboro Boys decision or even Gideon. In that regard, as the trial court is the only place where someone is affirmatvely required to have counsel it makes sense that if for policy decisions we need to do this that we do it the way the majority proposes.

At the end of the day, criminal trial courts are the triage rooms of our justice system, esp. state trial courts. What the lawyers do in the various appellate courts, Supreme Courts, etc, with a scalpel we in the trenches (to borrow a line) do with baseball bats. I do worry, however, about overloading our already loaded trial court systems with yet another responsibility in these tight budget times.

As an aside, I would love to have been a fly on the wall of Justice Sotomayor's chambers to know how much her real world experience shaped this opinion.

Posted by: karl | Apr 1, 2010 9:40:59 PM

"gimme a break, karl, no one thought that the Sixth Amendment guaranteed paid-for counsel until 1963. Now it guarantees advice in a state case on the federal consequences of a conviction? Whatever you say. You can say a lot of things in favor of Padilla--textual faithfulness is not one of them."

An Originalist, I see. So you believe that the Constitution as applied today permits the criminalization of interracial marriage? It quite plainly did when the Fourteenth Amendment was ratified in 1868.

Posted by: JC | Apr 1, 2010 10:47:20 PM

Posted by: JC | Apr 1, 2010 10:47:20 PM

I would personally agree with that up to a point. The document provides a mechanism for altering its provisions. Redefining the words contained therein is not the proscribed method.

Posted by: Soronel Haetir | Apr 1, 2010 11:17:48 PM

Actually, Soronel, redefining the words is the "proscribed method." I think you mean to say that amendment is the prescribed method. (Unless, of course, you want to redefine "proscribed.") Interpreting and applying the words, however, is the accepted method for deciding cases presenting questions of constitutional law, as here. What does it mean to "enjoy the right to have the assistance of counsel" in a "criminal proceeding" for one's "defense" as "the accused"? This is a matter of interpretation, not of definition. The Court's interpretation of those words, as applied to the problem at hand, is entirely reasonable. You can disagree with it, of course, but it is not illegitimate, as you attempt to intimate.

Posted by: Peter G | Apr 1, 2010 11:37:35 PM

"I would personally agree with that up to a point."

So if I fall in love with a woman of another race, and the state I live in says it's a felony if we get married, you think that's perfectly constitutional? Let's say it's a capital offense for she and I to get married. I presume you have no problem with that?

Posted by: JC | Apr 2, 2010 12:03:10 AM

And it's "prescribed," not "proscribed," by the way. Even federalist will concede that point, as "proscribed" intimates condemnation, not recommendation as "prescribed" does.

Posted by: JC | Apr 2, 2010 12:11:07 AM

I actually do have some sympathy for federalist's point of view. The problem is that this boat sailed so long ago I think he's living in a dream would if he thinks we can sail it back without another civil war.

Peter G. The difficultly is where does one draw the line between an "interpretation of the Constitution" and a "judicially invented amendment that usurps basic democratic principles." Part of the reason that I have sympathy for federalist's position is because, looking at the big picture, I certainly think the Supreme Court tends to engage in more of the latter than the former.

Where I disagree with conservatives on this issue is that their solution to this problem is to try to pack the court with people who are supposed to exercise judicial restraint. I think that history shows that to be a genuine failure because its amazing how protective people become of the Court's power once it's their turn to sit on the bench. I think the court would be more likely to back off and back down if people were to take the initiative and actually use the amendment process. The problem with that approach is it runs counter to the general Republican tendency to sheepify the people.

So while I have some intellectual sympathy for federalist's concern I admit that it's fun to watch him squirm. It must really really gall that two conservatives justices appointed by a conservative president and a Republican controlled Senate voted with the majority.

Posted by: Daniel | Apr 2, 2010 1:35:09 AM

"...I think he's living in a dream would if he thinks we can sail it back without another civil war."

"It must really really gall that two conservatives justices appointed by a conservative president and a Republican controlled Senate voted with the majority."

No, and no. We can sail it back by enforcing the Establishment Clause and the laws against armed robbery by the self-dealing dealing lawyer elite. The arrest, trial, and execution of this most powerful criminal syndicate, now in full control of our government, will suffice. We pity Mexico. However besieged their government by violent criminal syndicates, the latter do not make 99% of the government policy decisions, as our criminal syndicate does. Ours is far slicker and far more difficult to manage. Ours has nuclear weapons at its disposal.

It galls but does not surprise to see conservatives join in this decision. They are generating lawyer jobs, the number one priority and the best predictor of appellate decisions, however anomalous, stupid, unlawful, and insane.

Posted by: Supremacy Claus | Apr 2, 2010 2:02:30 AM

I look at this another way:

The IAC now means that a criminal defense attorney must leverage any paralell proceedings to his client's advantage. So, for example, say that SEC sues a defendant at the same time criminal charges are brought, he now must use those collateral proceedings to his client's advantage, if at all possible.

Posted by: s.cotus | Apr 2, 2010 2:38:53 AM

Posted by: JC | Apr 2, 2010 12:03:10 AM

Not only would I be okay with it I would gladly throw the switch or press the plunger. I'd give getting a IV started a try, but being blind, I think that would be fairly difficult. I am pro execution for petty theft so why should interracial marriage, assuming the legislature chooses to criminalize such and the people don't pass an amendment to the contrary,, get a pass? The federal constitution is supposed to leave a huge amount of room for states to do really dumb things, making interracial marriage a capital offense would be just one of them.

I would also say I believe if the court were to start allowing things of that sort that the high barrier to passing amendments would not prove much of an obstacle. As it is the only concern our legislators appear to have is whether the bills they pass will survive court review. I would much prefer that the people hold elected officials accountable but that doesn't happen very often.

Posted by: Soronel Haetir | Apr 2, 2010 3:00:36 AM

Does the ruling create a sort of conflict of interest for defense counsel in some situations? That is, you have a plainly guilty client who you'd normally advise to take a plea deal. But you also now have an obligation to explain (and emphasize the importance of) the immigration consequences that will inevitably flow from the conviction. So now it becomes more likely that your client insists on going to trial, which will lead to his getting a longer sentence, plus being deported anyway. I'm normally skeptical of conspiracy theory arguments, but it does seem like this sets up an IEC claim no matter what happens.

Posted by: Jay | Apr 2, 2010 10:01:57 AM

It's probably hoping for too much, but this decision *should* prompt Congress to make a long-overdue reexamination of the criteria for deportation. It shouldn't be anywhere near as complicated as it is, and advising the defendant shouldn't require a specialist.

For example, I agree with a rule of law that says an alien who commits an "aggravated felony" should be deported, but the term doesn't mean what it says. Some crimes are included that aren't felonies at all, much less aggravated.

Posted by: Kent Scheidegger | Apr 2, 2010 12:10:05 PM

Kent from your lips to God's (or in this case Congress's) ears. The type of common sense immigration reform you propose is long overdue. The current rules only serve to fatten the pockets of lawyers who specialize in that arena, while unnecessarily clogging up both the state and federal courts.

Posted by: Karl | Apr 2, 2010 1:12:36 PM

Drunk drivers should be deported.

Posted by: federalist | Apr 2, 2010 2:24:12 PM

drunk drivers should be deported even if they are citizens.

Posted by: anon | Apr 2, 2010 7:40:10 PM

It's probably hoping for too much, but this decision *should* prompt Congress to make a long-overdue reexamination of the criteria for deportation. It shouldn't be anywhere near as complicated as it is, and advising the defendant shouldn't require a specialist.

Posted by: du hoc uc | Apr 4, 2010 10:45:40 PM

I was just wondering if Padilla would apply retroactively - meaning if people already deported can claim ineffective assistance of counsel? I am a law student.

Posted by: Katie | Apr 7, 2010 1:09:40 PM

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