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Failure to Advise Guilty Plea Defendant of Deportation Consequence

Padilla v. Kentucky, USSC No. 08-651, 3/31/10

In sum, we have long recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel. Hill , 474 U. S., at 57; see also Richardson , 397 U. S., at 770–771. The severity of deportation—“the equivalent of banishment or exile,” Delgadillo v. Carmichael , 332 U. S. 388, 390–391 (1947) —only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation. 15

It is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the “mercies of incompetent counsel.” Richardson , 397 U. S., at 771. To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.

Padilla says he pleaded guilty because his attorney misadvised him he wouldn’t get deported (as it turned out, deportation automatically flowed from conviction). The KY supreme court said the misadvice didn’t matter because deportation is a mere collateral consequence of the plea. The Court now reverses. It might have taken the narrow route, which is that affirmative misadvice on a collateral consequence invalidates the plea. (You can find some of the more recent Wis cases on direct vs. collateral consequences of pleas, here; for example of affirmative misinformation on collateral consequence, see State v. Charles Brown, 2004 WI App 179.) The flip side is that if counsel says nothing (as opposed to providing misinformation) about a collateral consequence, then the client hasn’t been harmed. But Padilla goes farther than that, and says that counsel was obligated to inform Padilla that he would be deported on conviction. So, that does mean that deportation is a “direct” consequence of a plea? Or is the Court saying that you’ve actually got to go through a check list of collateral consequences? Well, it’s surely not the latter. But it’s not clear the former is true either. Instead, the Court stresses “the unique nature of deportation,” which makes it “uniquely difficult to classify as either a direct or a collateral consequence.” Net result: “advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.” Some lawyerly qualifications follow, such as “when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.”

Where does all this leave us? Wisconsin already requires that the potential for deportation be made part of the plea colloquy, § 971.08(1)(c); State v. Sisakhone S. Douangmala, 2002 WI 62, so there won’t necessarily be much change in that respect, though that depends on how attorneys currently discharge this statutory obligation. The colloquy warns the defendant that a guilty plea “may result in deportation.” That’s probably not enough to satisfy Padilla where deportation is automatic (for the obvious reason that “may” isn’t “must”; and that Padilla mandates “the duty to give correct advice” with respect to a “clear” consequence of deportation). And when deportation is not automatic? Then, Padilla says, “a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” What it boils down to, then, is that the statutory colloquy falls short where deportation is mandatory, and counsel will need to make sure the knowledge gap is filled.

Whether there is any basis for revisiting the way we cavalierly dismiss various consequences as merely “collateral,” e.g., State v. Wayne A. Sutton, 2006 WI App 118 (initial confinement exposure); State v. Bollig, 2000 WI 6, ¶27 (sex offender registration); State v. Myers, 199 Wis. 2d 391, 394, 544 N.W.2d 609 (1996) (potential for ch. 980 commitment); State v. Anthony A. Parker, 2001 WI App 111¸ ¶9 (restitution), remains to be seen. Other jurisdictions, e.g., State v. Denisyuk, 2010 Md. App. LEXIS 49 (March 29, 2010) (“The Sixth Amendment does not impose on a lawyer a duty to inform a client contemplating a guilty plea about collateral consequences generally or the risk of deportation specifically”) will have to go back to the drawing boards. And that includes the Seventh Circuit on habeas review, Santos v. Kolb, 880 F.2d 941 (7th Cir. 1989) (“The failure of petitioner’s counsel to inform him of the immigration consequences of his guilty plea, however unfortunate it might be, simply does not deprive petitioner of the effective assistance of counsel guaranteed by the Constitution”).

The Immigrant Defense Project appears to be a useful, readily accessible resource; its “Padilla Practice Advisory” is available here. Alex Lockwood has prepared a Wisconsin-specific chart relative to immigration consequences, here. Also see, “Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction” (and if its prediction that “Padilla may turn out to be the most important right to counsel case since Gideon,” then much litigation awaits).

UPDATE. Bronx Defenders attorney J. McGregor Smyth Jr. has posted “‘Collateral’ No More — The Practical Imperative for Holistic Defense in a Post-Padilla World…Or, How to Achieve Consistently Better Results for Clients,” St. Louis University Public Law Review, Vol. 31, p. 139, 2011, the title well-explaining the thrust (“In short, this Article outlines a framework for how defenders can and should use Padilla as leverage to get better results. … The Supreme Court’s reminder that the client must be the central focus of defense advocacy lays the foundation for a more robust, holistic vision of the defense function.). A few examples given of caselaw extensions of Padilla beyond deportation, see fn. 14. Lest anyone thinks that “Padilla” is some sort of all-purpose principle, see U.S. v. Reeves, 7th Cir. No. 11-2328, 8/20/12 (“Indeed, Padilla is rife with indications that the Supreme Court meant to limit its scope to the context of deportation only.”).

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