Ignorance Is Effectively Bliss: Collateral Consequences, Silence, and Misinformation in the Guilty-Plea Process

• Author: Jenny Roberts
• Position: Associate Professor and Director, Criminal Defense Clinic, Syracuse University College of Law
• Pages: 03

Associate Professor and Director, Criminal Defense Clinic, Syracuse University College of Law; Visiting Associate Professor, American University, Washington College of Law, 2009-2010. Many thanks to Barbara Fedders, Mary Holland, Hillary Josephs, Mary Helen McNeal, Robert Rabin, Rebecca Rosenfeld, Juliet Stumpf, Steven Wechsler, and particularly Christopher N. Lasch for their comments and suggestions. Thanks also to workshop participants at Syracuse, NYU (Clinical Law Review Writer's Workshop), and the AALS Clinical Conference. For invaluable research assistance, thanks to Gregory Amend, Peter Chambers, Erin Creaghe, Nicholas Moore, Joseph Pylman, Jonathan P. Saine, and Nicole Staring.

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I Introduction

Paul Russell was twenty-three years old when he pleaded guilty to possession of marijuana and to carrying an unlicensed handgun, both misdemeanors.¹ He was a lawful permanent resident of the United States, but remained a citizen of Jamaica.² As Russell served his month-long jail sentence, federal immigration authorities began deportation proceedings against him. As soon as Russell became aware of this, he moved to withdraw his guilty pleas.³ Ultimately, the U.S. Court of Appeals for the District of Columbia Circuit granted Russell's motion on the grounds that the prosecutor had stated incorrectly during the guilty-plea colloquy that a misdemeanor conviction would not make Russell eligible for deportation.⁴ In arriving at this conclusion, the Court made a rather disturbing statement:

We reach this holding, of course, because the prosecution chose to speak [about deportation], and spoke incorrectly. Had the government stood mute this would be a more difficult case. It is extremely troublesome that deportation has never been considered a direct consequence of guilty pleas of the sort that must be brought to the defendant's attention before his plea may be considered voluntary under Rule 11.⁵

Russell was "lucky" to have been misadvised. Although the plea withdrawal remedy simply put him back in the position of facing all of the original felony and misdemeanor charges, this time around Russell could make the decision about whether to plead guilty or go to trial with knowledge of the deportation consequences. But for a brief remark by the prosecutor, Russell would have been unable to withdraw his guilty pleas.⁶ These two misdemeanor guilty pleas would have subjected him to deportation to a country he had not lived in for nearly a decade.⁷

Jose Padilla was not as lucky, but not because the facts of his case differed much from those of Russell. Rather, he had the misfortune of receiving erroneous information about the deportation consequences of hisPage 123 guilty plea from his own lawyer in Kentucky.⁸ In his case, the Kentucky Supreme Court recently held a defendant's Sixth Amendment right to the effective assistance of counsel is not violated—or even implicated—when his lawyer advises him incorrectly, so long as the advice pertains to a consequence that is "collateral" to the actual penal sentence handed down by the criminal court judge.⁹ Since the Kentucky Supreme Court previously categorized deportation as a collateral event, Padilla's lawyer's incorrect immigration advice had no effect on the validity of Padilla's guilty plea. Thus, despite living for decades in the United States and having served in the military during the Vietnam War, Padilla faced mandatory deportation for his marijuana-trafficking conviction.¹⁰

Only the U.S. Supreme Court stands between Padilla and his deportation to Honduras. The Kentucky decision created a split in authority that persuaded the Supreme Court to hear Padilla's appeal on an important issue of constitutional informational rights in the guilty-plea context.¹¹ Its decision will likely have a broad and lasting impact on a number of areas relating to the consequences of criminal convictions—including client counseling, guilty-plea allocutions, and plea-bargain negotiations—implicating both Sixth Amendment effective-assistance-of-counsel and due-process standards.

The Russell and Padilla courts' different approaches are both cause for concern. The Russell court's rule encourages prosecutors, judges, and defense lawyers to remain silent about the existence or severity of collateral consequences, lest they give incorrect information and thereby undermine the finality of the guilty plea or risk being branded an ineffective attorney. The opinion in Padilla, on the other hand, effectively permits a defense lawyer to "induce his or her client to plead guilty through deception orPage 124 outright incompetence related to a 'collateral' matter without undermining the validity of the plea."¹²

This perverse incentive structure should lead the Supreme Court to reject the approaches of both courts. Instead, the Court should formally acknowledge the existence of evolving professional norms, which in recent years have developed into a more robust, affirmative duty to warn defendants about collateral consequences in criminal cases.¹³ Effective-assistance-of-counsel jurisprudence gauges attorney competence against prevailing professional norms,¹⁴ and it is time for the constitutional jurisprudence to catch up to these heightened standards. The Court should reject the artificial, ill-conceived divide between collateral and direct consequences and find that only a rule of full information about any severe consequences of a criminal conviction can adequately protect the constitutional values surrounding guilty pleas, including the right to an informed, voluntary process and the assistance of an effective lawyer.

This divide is rooted in the so-called "collateral consequences" rule. Lower federal and state courts have created this rule, stating that an individual's guilty plea is constitutionally valid even if that person was unaware of his conviction's "collateral" consequences. In other words, the individual pleading guilty need only be informed about the "direct," or penal, sanctions—such as jail or prison time, probationary period or a fine—which will result from the conviction.¹⁵ Courts have labeled many consequences "collateral," including deportation, sex-offender registration, post-sentence involuntary civil commitment as a "sexually violent predator," the loss of voting rights, and the loss of housing and employment opportunities.¹⁶ A defendant's right to know about such consequences, andPage 125 thus to have the full picture about what will or may occur as a result of any guilty plea, is consistent with our criminal justice system's concerns with fairness, transparency, voluntariness, and proportionality. Yet almost all jurisdictions that have considered the issue have found that courts do not have a constitutional duty to ensure that a defendant is aware of the collateral consequences attached to a guilty plea—many of which are severe.¹⁷ What is more, courts have also found that neither due-process nor effective-assistance-of-counsel norms require defense counsel to warn the defendant of collateral consequences.¹⁸ Therefore, courts do not allow defendants to withdraw their guilty plea because their counsel failed to warn them about such consequences.¹⁹ Under the collateral-consequences rule, silence about many severe but non-penal consequences is widely accepted. Yet many collateral consequences are as serious as, or even overshadow, the penal sanction. If informed about serious collateral consequences, defendants would certainly take them into account in deciding whether to enter a guilty plea.

In Russell, and in almost every state and federal jurisdiction that has considered a case involving misadvice, there is another layer to the thorny ethics and incentive issues posed by the collateral-consequences rule. These courts all adhere to an "affirmative misadvice" or "misrepresentation" exception to the rule: while silence is permissible, if the court, defense counsel, or prosecution tries to warn about the same consequence yet provides the defendant with erroneous information, the plea will violate due-process standards which require that defendants knowingly andPage 126 voluntarily enter guilty pleas.²⁰ If the misrepresentation comes from defense counsel, it may also constitute a violation of the Sixth Amendment's effective-assistance-of-counsel guarantee.²¹ The affirmative-misadvice exception "is apparently the rule in every Federal circuit, the District of Columbia, and twenty-one states."²²

Taken together, the collateral-consequences rule and its affirmative-misadvice exception send a troubling message to parties involved in the guilty-plea...