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July 10, 2010

"Status as Punishment: A Critical Guide to Padilla v. Kentucky"

Thie title of this post is the title of this new piece by Gabriel Chin and Margaret Colgate Love now available via SSRN. Here is the abstract:

There are only a handful of Supreme Court decisions in the past 50 years that can be said to have transformed the operation of the criminal justice system.  Padilla v. Kentucky may be such a case.  In Padilla, the Court ruled that criminal defense lawyers must advise their non-citizen clients considering a guilty plea that they are likely to be deported as a result. It is the first time the Court extended the Sixth Amendment right to counsel to a consequence of conviction that is not part of the court-imposed punishment.  The decision represents an important first step toward imposing constitutional discipline on the plea bargaining process.  As a practical matter, the decision will affect how all participants in a criminal case conduct themselves, not just defense counsel.

Padilla offers important protections for non-citizens who are in the criminal justice system.  But it has broader implications. In requiring consideration of indirect as well as direct consequences of conviction in connection with bargaining over the appropriate penalty, the decision implicates the concept of truth in sentencing itself.  Yet it is less surprising that the Court should extend the right to counsel to collateral consequences at the plea stage, than that it took so long to do so.  This essay places Padilla in the larger framework of modern criminal justice to understand its justifications and implications in policy terms.  It argues that the logic of the Padilla decision is not confined to deportation but extends to other severe and certain collateral consequences of conviction.  It reviews the reasons given for treating collateral consequences differently from other important consequences of conviction, and concludes that there is no principled basis for that distinction. Imposing collateral consequences has become an increasingly important function of the criminal justice system, so that they have to all intents and purposes become part and parcel of the criminal case.  Accordingly, an expanded duty of counsel represents sound public policy, based on considerations of safety and efficiency, judicial integrity, and fairness to individuals.  Finally, the essay describes efforts underway by the ABA and the Uniform Law Commission to make it possible for criminal defense attorneys to offer adequate advice about collateral consequences without unreasonable expense or delay.

July 10, 2010 at 11:41 PM | Permalink


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Hi,I am a student of law in Europe(Ireland) and am never ceased to be amazed at the difference between sentencing policy in Europe and in the U.S.
Ours seems too soft-yours seems too draconian..
In Ireland we have concurrent sentencing rather than concurrent so the incentive here is to really do the dog on your crime because you will only serve the sentence for the longest one which, if it is say 10 years, you will get 25% remission for good behaviour anyway(regardless of your behaviour!)

Posted by: Terry | Jul 11, 2010 6:45:37 AM

A thought provoking piece taking Padilla's implications and import to another level.

Posted by: Benson Weintraub | Jul 11, 2010 2:37:04 PM

i just wonder what would happen if the 100's of thousands of individuals ILLEGALLY placed on the Megan's Law Registry use this to beat the govt over the head. Gonna be hard to reconcile this with what happened to those 100's of THOUSANDS how were NEVER INFORMED they could be ILEGALLY forced to register in a majority of cases FOR LIFE. Of course it's awful hard to notify someone of a duty THAT DIDNT' EXIST AT THE TIME.

which last time i looked was the textbook def of an "Ex post facto law" i don't care what legal wording you try and use.

Posted by: rodsmith | Jul 11, 2010 5:27:50 PM

Terry: The Irish crime rate dropped when your imprisonment rate increased, just as they did in the USA. I would like to hear more inside information. A girl walks into a police station and says her date raped her at knife point, and punched her out. The police will tell her to get out. The police are lay, worthless, government workers counting down the days to retirement. So that low crime rate in Europe may be totally false. Ireland, I assume has a low rate of bastardy, compared to the US, especially in minority neighborhoods, where the influence family is basically gone. What is happening with bastardy in Ireland?

Posted by: Supremacy Claus | Jul 11, 2010 8:32:39 PM

As this paper argues, not even legislatures are aware of all the collateral consequences. It would not be a stretch to argue that collateral consequences + collateral consequences + collateral consequences = equals punishment even if civil. So the sum total of collateral consequences equals a violation of the ex post facto clause where an individual collateral consequence my not. In other words, stacked collateral consequences rise to the level of stigma plus in violation of the privileges and immunities clauses.

Posted by: George | Jul 11, 2010 9:55:43 PM

how true george the sex offender so-called civil registration laws are a PERFECT EXAMPLE the only real U.S Supreme court decision on them in 2002 laid out what would be legal and what would NOT have been legal. Guess what every single example in the text that the judges said WOULD HAVE MAKE IT ILLEGAL are NOW REQUIRED. But anytime one of the ilegally persecuted individual manages to scrape up the funds and sues gues what some IDIOT JUDGE clames the U.S. Supreme court said the registry was legal NEVER MIND that what we have now is out in deep space as far as the court decison is.

Posted by: rodsmith | Jul 13, 2010 1:42:35 AM

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