Padilla v. Kentucky: sound and fury, or transformative impact.

• Author: Zeidman, Steven
• Position: Padilla and the Future of the Defense Function

The March 2010 decision by the Supreme Court in Padilla v. Kentucky, (1) holding that it was constitutionally deficient for a defense attorney to fail to warn his client of the near-certain deportation consequences of a guilty plea, was lauded by many individuals and groups as having the potential to transform criminal defense representation. (2) On its face, the decision merited adulation and reification; after all, the stories are legion of people being deported as a result of uncounseled and/or ill-advised pleas. (3)

Two years later, commentators still sanctify Padilla as heralding a "revolutionary shift" in practice, (4) and Padilla-inspired trainings, conferences and law review symposia crowd the legal calendar. (5) But has there been any impact on the nature and quality of representation provided to those accused of crime? It is time to examine whether there has been substantive change to match the optimistic rhetoric. A careful analysis of the inadequate, unethical, and now unconstitutional counseling at the heart of Padilla, and of the ramifications of the Court's holding, suggests that the immediate outpouring of support and gratitude for the decision overstated the impact of the case and overlooked potential areas of concern.

This Article explores the reasons for the high expectations and the limited impact of this Supreme Court ruling on a complex reality. The appropriate starting point for such an inquiry is to try and understand the underlying problem which, while perhaps not motivating the Court to issue its ruling, did move many immigrant's rights organizations to zero in on Padilla as the potential holy grail of effective assistance from the moment the Court granted certiorari. For these advocates, the seemingly recurring wrong that needed a remedy involved a defendant taking an uncounseled or misadvised plea, which in turn led to deportation. A ruling that appeared to address this problem was seen as a godsend.

Two questions immediately arise if one hopes to assess whether the Court's holding will right the above-mentioned wrong: how widespread was the problem, and why was it occurring?

Quantifying or in any meaningful way measuring the extent of the problem is likely an impossible task. Perhaps one could count the number of appeals that raise the inadequate immigration advice issue, and also see if these cases were of relatively recent vintage or had been increasing in number. Reported cases, even those where the courts deny ineffective assistance of counsel claims, often recite facts that paint a clear picture of substandard, if not constitutionally ineffective, assistance as to immigration issues. (6) Maybe the extent of the problem was captured by the growing number of media accounts of people with longstanding ties to the United States facing deportation because of ill-advised pleas, (7) or by the burgeoning interest in the issue as reflected by the myriad law review articles on point. (8) Or perhaps there was just a vague, shared sense that criminal defense attorneys, maligned since the first days after Gideon, (9) do not know what they are doing, have divided loyalties, or are just too under-resourced and overwhelmed to pay sufficient attention to the law and to their clients' immigration statuses. (10)

Notwithstanding the difficulties inherent in aggregating the "ill-advised plea to deportation" problem, if we accept that such a problem exists to a significant degree, and that it is of national dimension, then it behooves all concerned to identify the underlying causes. Otherwise, we run the risk of fashioning a solution, in this case by way of the holding in Padilla, that addresses only the symptoms. Furthermore, we cannot hope to evaluate the potential impact and limitations of Padilla without a firm grasp on the source of the underlying crisis.

What, then, were the causes of the problem; why were there an intolerable number of deportations stemming from "bad" pleas? After all, as the Court noted, "It]he weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation." (11) As support for that assertion, the Court listed an amalgam of standards and legal analyses, some written as far back as 1993, from, inter alia, the National Legal Aid and Defender Association, the Department of Justice, the American Bar Association Standards for Criminal Justice, criminal practice manuals, and law reviews. (12) Emphasizing the point that the duty to advise was not merely well-known, but was also universally acknowledged, the Court quoted from the amicus brief filed by Legal Ethics, Criminal Procedure, and Criminal Law Professors: "authorities of every stripe ... universally require defense attorneys to advise as to the risk of deportation consequences for non-citizen clients ...." (13) While the Court seized upon this language to argue that the duty to advise about deportation consequences was indeed a prevailing professional norm, (14) the unambiguous and concordant language of those multiple sources poses a larger question--if the duty is so clear, why isn't it being followed? Put another way, why isn't the prevailing professional norm actually prevailing? Difficult as it is to identify with certainty the causes of noncompliance with previously promulgated rules, potential causes should be identified; otherwise it is impossible to assess whether Padilla will have the revolutionary impact on indigent defense that some have already prophesized. (15)

While there are myriad possible reasons for the seemingly systemic violation of extant professional norms concerning immigration counseling, the issue is best analyzed through two lenses: individual attorney fault and structural failure. With regard to the former, there is little doubt that many of these travesties are attributable to bad lawyers and bad lawyering. Whether due to attorney ignorance, attorney indifference, or attorney malevolence, many of the ill-advised pleas of the Padilla variety lay blame at the doorstep of individual defense attorneys.

It is also beyond question that many of these faulty pleas are the result of the chronic underfunding and resultant overburdening of public defenders who labor under crushing caseloads. (16) These institutional defenders have little or no time to investigate their clients' backgrounds or the deportation consequences of their cases. (17) Coincident and intertwined with the overwhelmed public defender, is an overwhelmed system. With quality-of-life, hyper-aggressive policing sweeping the nation, prosecutors and judges have heavy caseloads, too. (18) The end result is a premium on, and pressure for, guilty plea dispositions at the first possible moment, long before any attorney could investigate and ascertain her client's immigration status and learn the consequences that flow from the offered plea. (19) Given the complex interplay between the quality of individual lawyers and an intractable criminal justice system, it is difficult to imagine a straight-forward, Padilla-inspired remedy for the underlying immigration advice problem. Without quantifying what percentage of criminal defense attorneys fall into any of the groups above, it is certainly also the case that many attorneys were well aware of the standards referenced by the Supreme Court and had already been advising their clients, at least to some extent, about immigration consequences of proposed guilty pleas. Furthermore, accepting the Court's premise that the prevailing norm has always been for attorneys to provide adequate immigration impact advice, then surely there are a large number of attorneys who for years have already been providing their clients with this kind of advice. In fact, if these lawyers reflect the prevailing norm, then presumably they are in the majority of criminal defense attorneys.

Yet, it is clear that a significant problem exists and persists, and even well-intentioned lawyers frequently fail to provide adequate immigration advice. The critical question becomes whether Padilla can, or will, affect the practice of those who--either because of their own incompetence or because of institutional impediments to effective representation--have been ignorant of, unwilling, or unable to conform to prevailing norms. Before we canonize the holding in Padilla, we must ask whether it addresses, let alone fixes, the larger problem--will Padilla have any significant impact on the nature and quality of the practice of those who have heretofore been violating longstanding, universally acknowledged and accepted rules?

Maybe the Supreme Court imprimatur on the duty to advise will make a difference. To the extent that some attorneys were unaware of the relationship between pleas and immigration consequences, the Supreme Court's bully pulpit may get their attention in ways that the American Bar Association, Department of Justice or National Legal Aid and Defender Association standards apparently did not. Yet, it is difficult to escape the irony of noting that to support its holding, the Court cited the very standards that had been largely ignored or relegated into obscurity.

Perhaps now that the duty to advise is a constitutional, as opposed to a "mere" ethical, obligation, attorneys will adhere to its dictates for fear of being found to have provided ineffective assistance of counsel. Maybe the specter of the ineffectiveness scarlet letter is more real to practicing attorneys than the vague and seldom realized threat of professional discipline. (20) In a similar vein, perhaps more attorneys will now provide the requisite advice out of greater concerns about coram nobis (21) or malpractice claims flowing from allegations of constitutionally deficient representation. (22) Perhaps then, Padilla will drag some percentage of the recalcitrant, ineffective lawyers along, albeit kicking and screaming or in spite of themselves. On the other hand, it is hard to see how...