Crimmigration' and the Right to Counsel at the Border Between Civil and Criminal Proceedings

Author:Christopher N. Lasch
Position::Assistant Professor, University of Denver Sturm College of Law; J.D., Yale Law School; B.A., Columbia College
Pages:2131-2160
 
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2131
“Crimmigration” and the Right to Counsel
at the Border Between Civil and Criminal
Proceedings
Christopher N. Lasch
INTRODUCTION .................................................................................... 2132
I. GIDEONS OPERATIVE PROPOSITION AND THE COURTS DECISION
RULES IMPLEMENTING IT ..................................................................... 2136
A. THE OPERATIVE PROPOSITION: DOES THE RIGHT TO COUNSEL
PROTECT MORE THAN THE FAIRNESS OF A CRIMINAL TRIAL? ........... 2136
B. DECISION RULES IMPLEMENTING THE RIGHT TO COUNSEL IN
CRIMINAL CASES ............................................................................ 2140
1. Gideon v. Wainwright (1963) .................................................. 2140
2. Strickland v. Washington (1984) ............................................. 2140
3. Martinez v. Ryan (2012) ......................................................... 2142
C. THE GAP BETWEEN OPERATIVE PROPOSITION AND DECISION RULES:
GIDEONS UNFULFILLED PROMISE .................................................. 2144
II. PADILLAS OPERATIVE PROPOSITION AND THE COURTS DECISION
RULE IMPLEMENTING IT ....................................................................... 2147
A. THE OPERATIVE PROPOSITION—PROTECTING AGAINST UNWITTING
DEPORTATIONS .............................................................................. 2147
B. DECISION RULES: WILL PADILLAS PROMISE BE FULFILLED? ............ 2152
III. A PROPOSED DECISION RULE TO IMPLEMENT PADILLAS OPERATIVE
PROPOSITION ....................................................................................... 2156
CONCLUSION ....................................................................................... 2159
Assistant Professor, University of Denver Sturm College of Law; J.D., Yale Law School;
B.A., Columbia College. As always, I owe a debt to others, though any errors or missteps
remaining in these pages are my own. My thanks go first and foremost to Professor James
Tomkovicz and the members of the Iowa Law Review for inviting me to participate in this
Symposium. Members of the Rocky Mountain Collective on Race, Pla ce, and Law, and in
particular Robin Walker Sterling, provided essential support for this piece and c ontributed
greatly to the development of my ideas. Michael Wishnie offered inspiring suggest ions, as is his
way. Many of them appear here, with little alteration; I regret my inability to incorporate all of
his valuable insights. Alison Blackwell provided essential and timely research assistance.
2132 IOWA LAW REVIEW [Vol. 99:2131
INTRODUCTION
The Supreme Court recently discovered,1 in its 2010 decision in Padilla
v. Kentucky,2 what I have termed the “right to effective ‘crimmigration’
counsel”3—the right to effective advice concerning the potential
immigration consequences of a criminal conviction. The decision was
grounded in the Court’s recognition of a central reality of modern
immigration law, the intertwining of the criminal and immigration law
systems that scholars have labeled “crimmigration.”4 The Padilla Court noted
the explosion, particularly since 1996, in the use of criminal convictions as a
ground for deportation,5 and a narrowing of the grounds for discretionary
relief from deportation over the same recent span of history.6 The rise of
1. The Supreme Court claims not to “invent” new constitutional rules. Instead, the Court
“discovers,” one decision at a time, what the Constitution has always required. See Danforth v.
Minnesota, 552 U.S. 264, 269–71 (2008) (describing new constitutional rules as prescribed by
the Constitution and not “of [the Court’s] own devising”). Indeed, at least two state courts
“discovered” the constitutional right I discuss here before the Supreme Court did. People v.
Pozo, 746 P.2d 523, 527–29 (Colo. 1987); State v. Paredez, 101 P.3d 799, 805 (N.M 2004).
2. Padilla v. Kentucky, 559 U.S. 356 (2010). I discuss the facts of Padilla in greater detail
in a separate publication. Christopher N. Lasch, Redress in State Postconviction Proceeding s for
Ineffective Crimmigration Counsel, 63 DEPAUL L. REV. (forthcoming 2014). The case centered on
Jose Padilla’s claim that his criminal lawyer misadvised him concerning the immigration
consequences of a guilty plea. Padilla, a lawful permanent resident, was arrested when a search
of the eighteen-wheeler he was driving revealed over a thousand poun ds of marijuana. Joint
App., Padilla, 559 U.S. 356 (No. 08-651), 2009 WL 1499270, at *47–48 (indictment). Although
Padilla was initially released on bond, he was later held without bail on the belief he was “an
illegal alien and is awaiting deportation by the Federal authorities.” Id. at *43 (order); see also
Brief of Petitioner at 8–9, Padilla, 559 U.S. 356 (No. 08-651), 2009 WL 1497552, at *8–9. After
a year in jail, Padilla pled guilty to the felony charge of trafficking in marijuana and
misdemeanor charges of possession of marijuana and possession of drug paraphernalia. See
Padilla v. Commonwealth, 381 S.W.3d 322, 327 (Ky. Ct. App. 2012); Joint App., supra, at *57–60
(order); Brief of Petitioner, supra, at 9. He did so on the advice of his counsel, who told Padilla
that he “did not have to worry about immigration status since he had been in the country so
long.” Joint App., supra, at *72 (RCr. 11.42 motion). This was wrong—Padilla’s plea rendered
him deportable. Id. (citing 8 U.S.C. § 1227(a)(2)(B)(i) and its predecessor statute).
3. Lasch, supra note 2. The term “crimmigration” was coined by Juliet Stumpf in 2006,
and crimmigration scholarship represents an important body of work addressing the
intersection of criminal and immigration law. Id. (citing, inter alia, Juliet Stumpf, The
Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 AM. U. L. REV. 367 (2006)).
4. See supra note 3.
5. I use the term “deportation” rather than the sanitizing term “removal,” introduced with
the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, Pub. L. No.
104-208, 110 Stat. 3009-546, because “deport” takes a human object, while “remove” usua lly takes
an inanimate object and obscures the human reality of deportation. Cf. Rachel Weiner, AP Drops
“Illegal Immigrant” from Stylebook, WASH. POST (April 2, 2013, 4:07 PM), www.washingtonpost.com/
blogs/post-politics/wp/2013/04/02/ap-drops-illegal-immigrant-from-stylebook/ (explaining the
abandonment of the term “illegal immigrant” on the grounds that “human beings are not
themselves illegal, their actions are”).
6. Padilla, 559 U.S. at 360–64. For more exhaustive treatments of Padilla, see César
Cuauhtémoc García Hernández, Strickland-Lite: Padilla’s Two-Tiered Duty for Nonci tizens, 72 MD.
L. REV. 844 (2013); Daniel Kanstroom, The Right to Deportation Counsel in Padilla v. Kentucky:

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