A gauntlet thrown: the transformative potential of Padilla v. Kentucky.

• Author: Brink, Malia
• Position: Padilla and the Future of the Defense Function

Introduction I. The Meaning of Padilla v. Kentucky A. The Key Factors: Severity and Automatic Application B. Clarity and the Level of Advice Required II. The Transformative Power of Padilla III. Padilla and Hurdles to Full Implementation A. Duty Without Prejudice: What is a Right Without a Remedy? B. Padilla and the Indigent Defense Crisis 1. Challenging Public Defender Caseloads 2. Padilla's Relevance to Caseload Challenges Conclusion INTRODUCTION

In Padilla v. Kentucky, (1) a lawyer misadvised his client. He stated that the client did not need to worry about deportation when pleading guilty to a drug distribution offense. When the government subsequently initiated deportation proceedings, the client moved to vacate the underlying criminal conviction on the ground of ineffective assistance of counsel. The Supreme Court held that, under the circumstances presented, the lawyer had a duty to correctly advise his client about the deportation consequences of a conviction.

The obvious question is, how far will the Court's holding in Padilla extend? Some argue that it has started a revolution, fundamentally altering the concept of the criminal sentence and eradicating the distinction between direct and collateral consequences. Others contend that Padilla is likely to alter very little because the opinion is narrow, the consequence of non-compliance is small, and the workload of the criminal defense bar, or at least the indigent defense bar, is already unmanageable.

I assert that the power to determine the long-term meaning of Padilla lies primarily with the defense bar. If defense lawyers, particularly public defenders and court-appointed counsel, become mired in skepticism about the time and resources needed to fulfill the letter, no less the spirit, of the Padilla decision, the decision may change very little. If instead they embrace Padilla and utilize its mandate as a tool to fight for the resources necessary to provide each client with effective representation, the effect could be transformational. The defense bar must be at the forefront, arguing for a broad interpretation of Padilla, embracing the duty to warn each client of all of the severe consequences of his potential conviction and, further, utilizing this information together with information about the client's life and goals to achieve the best outcome for that individual.

The first section of this Article analyzes the Padilla case, demonstrating that the decision does require defense lawyers affirmatively to advise clients of the applicability of a large segment of collateral consequences, as well as provide detailed information about other potentially applicable collateral consequences. Part II discusses how Padilla's focus on the importance of a consequence to a client has the potential to transform the defense function. Part III examines whether hurdles to the implementation of Padilla, particularly the crisis in indigent defense, will curtail this transformation and outlines how Padilla, in fact, can particularly assist public defense lawyers to obtain greater resources.

1. THE MEANING OF PADILLA V. KENTUCKY

   Padilla v. Kentucky concerned a man who had been a lawful permanent resident of the United States for over forty years, including serving as a member of the U.S. Armed Forces. (2) Mr. Padilla pled guilty to drug distribution charges after his lawyer assured him that because he had been legally in the United States for so long, he did not need to worry about deportation as a consequence of conviction. (3) In reality, after Padilla entered a guilty plea to drug distribution, his deportation was virtually automatic. (4)

   Once deportation proceedings were initiated, Mr. Padilla challenged his drug distribution conviction, asserting that absent his counsel's erroneous advice about deportation, he would not have pled guilty. (5) The Supreme Court held that Mr. Padilla's attorney had a duty under the Sixth Amendment right to effective assistance of counsel to provide his client with correct advice on his likelihood of being deported. (6)

   There is no doubt that Padilla broke new ground. Until the Padilla decision, the vast majority of courts across the county held that defense lawyers had no affirmative duty to inform a client about the collateral consequences of a plea. (7) In other words, the defense lawyer's sole responsibility was the potential sentence to be handed down in a criminal case. Any other impact the conviction might have, whether on housing, employment, child custody, or even lifetime registration with the police, was not the purview or obligation of the defense lawyer. While some courts had held that a lawyer has a duty not to provide inaccurate advice, (8) no federal court had held that the defense lawyer has an affirmative duty to provide correct advice. (9) Until Padilla, silence or even "I don't know" was sufficient--a reality that resulted in a defense culture of not providing information regarding collateral consequences despite practice standards that required this advice. (10)

   Still, the full meaning of the Court's decision in Padilla is far from clear. The Court's rationale could be read very broadly or very narrowly, and the decision itself appears internally inconsistent. (11) On one hand, the Court rejects the position that only direct consequences are relevant under the Sixth Amendment: "We ... have never applied a distinction between direct and collateral consequences to define the scope of constitutionally 'reasonable professional assistance' required under Strickland[.]" (12) Focusing on this pronouncement, many assert that Padilla is a revolution, eradicating the formalistic distinction between direct and collateral consequences and fundamentally altering the concept of the criminal sentence. (13)

   On the other hand, the Padilla holding only addresses deportation, and the Court specifically distinguishes deportation from other "collateral" consequences. "Deportation as a consequence of a criminal conviction is ... uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation." (14) Further, the Court is careful to note that its holding does not extend to all deportation situations, but only to those where "the law is ... succinct and straightforward." (15) The Court emphasizes that Mr. Padilla's counsel had a duty to advise his client correctly because the inevitability of deportation was obvious from the plain language of the statute. (16) In this way, Justice Steven's majority opinion suggests that the decision is carefully circumscribed.

   To predict the likely impact of Padilla, one has to scrutinize carefully the Court's analysis. In reaching its conclusion that the defense lawyer had a duty to provide correct advice on deportation to Mr. Padilla, the Court relied on a couple of factors, namely: (1) "deportation is a particularly severe penalty;" and that (2) deportation is "intimately related to the criminal process," i.e., it is "nearly an automatic result" of conviction. (17) The Court then went on to say that for a circumstance to require correct advice, the application of the consequence to the particular defendant's case must be clear. (18)

   1. The Key Factors: Severity and Automatic Application

      Looking at the set of factors that the Court identified in the first part of the Padilla analysis, those who favor a broad interpretation appear to have the better argument. The Court's reasoning with regard to deportation could equally apply to a variety of collateral consequences. (19) As one commentator observed, the Court's "invocation of 'uniqueness' [with regard to deportation] rings hollow.... Nothing about th[e] explanation of deportation's 'uniqueness' limited the analysis to immigration penalties." (20)

      Many collateral consequences, from sex offender registration, to loss of child custody, to the termination of food and housing assistance benefits, are severe. (21) Like deportation, these consequences may be as important to the client as the criminal sentence itself, if not more so. (22) It is not difficult to imagine an individual who would be willing to plead guilty if it would result in spending some time in jail, but who would not be willing to enter the same plea if it would result in the termination of his professional license (23) or exclusion from living in subsidized housing with his family when he

      is released. (24) Similarly, it is easy to imagine a college student happy to accept a plea to probation for a minor charge of drug possession, until she learns that accepting the plea will result in the immediate termination of her financial aid. (25)

      Moreover, like deportation, most collateral consequences are "intimately related to the criminal process" (26) in that criminal conviction automatically triggers the consequences. There is no discretion involved in the application of the consequence, meaning that there is no separate procedure for determining whether the consequence is appropriate or necessary in a particular case. Consider the hypothetical of the student arrested for drug possession. Regardless of whether the student pleads to a misdemeanor or a felony, under the Drug Free Student Loan Act of 1988, she will lose her federal financial aid if she is convicted of drug possession. (27) There is no process for argument or appeal. So, like the deportation statute at issue in Padilla, the application of the consequence in this example is automatic and, therefore, tied to the criminal proceeding.

      Measuring other collateral consequences against these two factors of severity and nondiscretionary application, it seems clear that many would meet this Padilla test. Indeed, in the short time since the Padilla decision, a number of courts have reviewed other collateral consequences and found them to be equally as "unique" as deportation...