Conference report: Padilla and the future of the defense function.

Author:Schumm, Joel M.
Position:Padilla and the Future of the Defense Function

Introduction I. The Immediate Impact of Padilla II. Consequences Beyond Immigration and The Promise of and Problems With Checklists III. Resources and Partnerships IV. A New Type of Defense Lawyer?: The Challenges of Hiring, Training, and Supervising in a Post-Padilla World A. Hiring B. Training C. Supervision D. Certification V. Rethinking the Law School Curriculum Through the Padilla Lens VI. The Need for Data Conclusion: Much More Work Remains Appendix A: Agenda INTRODUCTION

In March 2010, the Supreme Court held in Padilla v. Kentucky that the failure to advise a client that a guilty plea carried the risk of deportation violated the Sixth Amendment. (1) Just over a year later, on June 20 and 21, 2011, more than eighty professionals were invited to reflect on the future of the defense function in light of Padilla at a conference sponsored by the National Legal Aid and Defender Association (NLADA) and National Association of Criminal Defense Lawyers (NACDL) and co-sponsored by the American Bar Association Criminal Justice Section Task Force on Comprehensive Representation.

Defense lawyers from public defender organizations and private practices from across the country joined leading clinical and doctrinal professors and other lawyers specializing in both immigration and other areas affected by the "collateral" consequences of criminal conviction. Through eleven panel discussions, this esteemed group looked back briefly on Padilla and the current state of affairs. Primarily, however, they looked to the future, focusing on the obligations, challenges, and promises arising from Padilla. The impressive agenda appears at the end of this report. The pages in between offer a summary of the key topics of discussion, including the immediate impact of Padilla on defense lawyers, the case's early reach beyond the realm of immigration, and the interplay between ethical and practice standards. Recognizing that Padilla can be a "lever for systemic change," (2) the report turns to the future in considering whether Padilla suggests that a new type of criminal defense lawyer should be hired, trained, and supervised; the ways that law school curricula may be refined to meet the challenges and the promise of Padilla; the broader concerns for partnerships and resources in realizing Padilla's potential; and, finally, a theme throughout the conference: the need for concerted data collection to achieve many of these goals.


    Participants debated and discussed the significance of Padilla in both the near and long term. For some defender organizations--like the Bronx Defenders, which has long taken a holistic approach to defense representation--the significance in day-to-day functioning has been minimal. (3) For other defense organizations or appointed counsel, the expectations underlying Padilla suggest a significant shift. Unfortunately, some lawyers do not do basic things like interview witnesses or talk to their clients. Expecting these lawyers now to provide a broad array of Padilla advisements is optimistic, to say the least. (4) When judges have the power to appoint counsel, some will appoint those lawyers who push back (and do) the least. (5)

    Although the conference focused on Padilla, the discussion at times broadened to the concerns that pervade the entire criminal justice system. Overcriminalization has been a concern for decades. It is now an even greater concern, not because of the direct consequences that arise from a misdemeanor or low-level felony conviction, which often consist of a short term of probation at most, but rather because of numerous and expanding collateral consequences. (6) The criminalization of dog leash violations, feeding the homeless, fish and game violations, and turnstile jumping clogs courtrooms and then burdens violators with the serious, life-long consequences that result from a conviction. (7) If a defendant cannot make bail, he or she may plead guilty to obtain release. (8) If defense counsel is now expected to advise clients about immigration and many other types of collateral consequences, excessive caseloads become an even greater concern. (9) The limited resources that have long plagued defender organizations have become especially scarce in recent years as state and local government budgets have tightened. These budget cuts have made fulfilling Padilla's promise-indeed, the obligation created--all the more challenging. (10) Although counsel have always had a professional obligation to advise clients of collateral consequences, (11) Padilla nevertheless serves as a useful "wake-up call" for defense lawyers and provides a new impetus to challenge excessive caseloads. (12)

    Even before Padilla was decided in 2010, many defense organizations employed a variety of approaches to providing comprehensive representation to clients. Representation for indigent defendants comes in three broad types: public defense, contract counsel, and private assigned counsel. (13) Considerable variations exist within each model. Some defense organizations are well-funded and are able to offer clients assistance on immigration and other collateral matters; others struggle with excessive caseloads that make even speaking with clients charged with serious offenses a challenge. As discussed below, training and other resources available to contract or assigned counsel vary as well. (14) Angie Junck of the Immigrant Legal Resource Center described her work in California, where a quarter of the undocumented population resides. Her organization contracts with counties to provide technical immigration assistance within forty-eight hours of a request. (15) Wendy Wayne of the Massachusetts Public Counsel Services began part-time in 2003. (16) She now has two staff attorneys working with her to provide advice on individual cases to the full-time and contract lawyers who work for the statewide system. (17) Lawyers must be certified before they may accept cases on contract in Massachusetts, and mandatory immigration training is required for all certified attorneys. (18) Jojo Annobil described the successful use of four immigration criminal law specialists within the New York Legal Aid Society. A criminal immigration specialist is always available either by phone or email to advise criminal defense attorneys and their clients of the immigration consequences of various criminal dispositions and to help them fashion favorable pleas to avoid certain deportation. (19) Christie Hedman is the executive director of the Washington Defender Association, which operates as a resource center for public defenders. (20) Her office has seen a doubling of cases since Padilla and is considering raising dues and leveling a surcharge on larger defense offices. (21) Other offices have relied on fellowship programs through groups like Equal Justice Works and AmeriCorps. (22)

    Regardless of whether the assistance provided is in-house or external, full-time or part-time, success depends on buy-in from those lawyers whose clients face deportation or other collateral consequences. The Legal Aid Society model, with dedicated in-house criminal immigration specialists, has worked well because of institutional buy-in from the criminal defense attorneys and management. (23) If a resource lawyer is not always available, buy-in can become more difficult. (24) Similarly, fellowship programs may hinder buy-in if lawyers view fellows as mere temporary employees. (25) Sharing positive outcomes with criminal defense attorneys, regardless of the type of system used, can help with buy-in. (26)


    Although the challenge in Padilla focused on advice regarding deportation, hundreds of other consequences result from criminal convictions in every state. (27) The majority opinion in Padilla focused almost exclusively on deportation and advice about immigration matters, but it also acknowledged that "removal proceedings are civil in nature" and that the Court had "never applied a distinction between direct and collateral consequences to define the scope of the constitutionally 'reasonable professional assistance' required under Strickland." (28) Justice Scalia's dissent asserted "no logical stopping-point" for defense counsel's obligation to advise about collateral consequences, quoting from the following list in the concurring opinion: "civil commitment, civil forfeiture, the loss of the right to vote, disqualification from public benefits, ineligibility to possess firearms, dishonorable discharge from the Armed Forces, and loss of business or professional licenses." (29)

    Professor Josh Bowers reported on several post-Padilla cases in lower courts that have addressed consequences beyond immigration. In the span of just over a year since Padilla came down, some trends have started to emerge as lower courts wrestle with the requirement that defense lawyers offer correct advice on collateral consequences that can be easily determined, such as deportation in Padilla's case. (30) In cases where the law is "not succinct and straightforward," however, defense counsel "need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." (31) Relying on Padilla, defendants have succeeded in challenging sex offender registration (32) and parole eligibility. (33) Others have succeeded in the failure to advise about the automatic forfeiture of a vested pension (34) and in challenging the erroneous advice that a no-contest plea to assault would not prejudice a civil case involving the same incident. (35) Courts have not yet addressed the reach of Padilla to advice regarding employment licenses or eligibility for public benefits. (36) Professor Bowers suggested that, notwithstanding extant doctrinal ambiguities, lawyers should consider themselves constitutionally obligated to advise clients about...

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