Restructuring Public Defense After Padilla.

• Author: Eagly, Ingrid

Table of Contents Introduction I. A Brief History of Indigent Defense in California A. The Invention of a County-Run Defense System B. Early Development of the Right to Counsel on Immigration Consequences C. The Padilla Revolution II. Distribution of Criminal Defense Services in California Today A. The Structure of County-Level Defense B. Models for Distributing Immigration Expertise C. Public Defender Budgets and Noncitizen Population III. Understanding Public Defense After Padilla A. Padilla and the Changing Role of Defense Counsel 1. Who must receive a Padilla advisal? 2. What must counsel do to investigate immigration consequences? 3. What must counsel do to defend against immigration consequences? 4. Does Padilla extend the right to counsel to civil deportation proceedings? B. Padilla on the Ground 1. Padilla advisals 2. Immigration-related services beyond Padilla 3. Caseloads for immigration experts 4. Resource needs Conclusion Appendix A: Survey of Chief and Lead Defenders Appendix B: Survey of Immigration Experts Appendix C: Qualitative Interviews Appendix D: County-by-County Noncitizen Population and Funding for Public Defense Introduction

In the 2010 landmark decision Padilla v. Kentucky, the Supreme Court held that the Sixth Amendment requires appointed counsel in criminal cases to inform their clients of adverse immigration consequences that may flow from a guilty plea. (1) Recognizing that deportation is "intimately related to the criminal process," the Court concluded that "when the deportation consequence is truly clear ... the duty to give correct advice is equally clear." (2) The Court added that to avoid adverse immigration consequences, defense lawyers may "plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation." (3)

Padilla garnered an immediate flurry of commentary by legal scholars who celebrated the decision as momentous. Margaret Love and Jack Chin argued that the "systemic impact" of Padilla's new obligation "cannot be underestimated" and "may turn out to be the most important right to counsel case since Gideon." (4) They predicted that the years to come would enshrine a "Padilla advisory" at the core of criminal defense practice and revolutionize the practice of plea bargaining. (5) Ronald Wright anticipated that the Padilla decision could reshape many defense practices, including by requiring greater teamwork and specialization among public defenders. (6) Malia Brink predicted that Padilla could make defense lawyers more "client-centered," in part by focusing them on consequential aspects of case resolution beyond potential prison sentences. (7)

At the same time, a growing chorus of scholars began to warn that structural impediments to implementing the Padilla advisal could threaten the legacy of the Court's ruling. Yolanda Vazquez counseled that implementation of Padilla would require attention to the fundamentals of public defense, including "reassessment of educational training" and "enforcement of professional standards." (8) Experts including Darryl Brown, Maureen Sweeney, and Steve Zeidman joined in raising the alarm that the promise of Padilla could fail to be realized due to funding shortages facing already overburdened public defender offices. (9) Failure to implement Padilla would be devastating to immigrants charged with crimes.

Over the past several decades, the criminal and immigration systems have become deeply intertwined. (10) A single conviction can result in deportation from the United States, even for individuals who are lawful permanent residents. (11) As the Supreme Court has recognized, "deportation is a drastic measure and at times the equivalent of banishment or exile." (12) Knowledge about immigration consequences prior to pleading guilty, as required by Padilla, enables clients to bargain with the prosecutor to achieve an immigration-neutral result (13) or to make an informed decision on going to trial in hopes of avoiding the conviction entirely.

Consider Jose Padilla's own case. Although Mr. Padilla had been a lawful permanent resident for over four decades and served honorably in the U.S. military, his plea to transportation of marijuana triggered "virtually mandatory" deportation. (14) Yet his lawyer advised him incorrectly, telling him that he "did not have to worry about immigration status since he had been in the country so long." (15) Had he been given accurate, specific information about the immigration consequence of pleading guilty, Mr. Padilla could have taken the case to trial or bargained with the prosecutor to plead guilty to charges that would not trigger automatic deportation.

Although Padilla is now widely understood to demand immigration advising, the Court gave no guidance as to how its decision should be implemented at the local level, in the varied settings where indigent defense is practiced. (16) Over a decade has passed since the Padilla decision, yet no empirical study has evaluated how public defenders go about fulfilling this Sixth Amendment obligation to immigrant clients. (17) Not surprisingly, especially little is known about these matters in small and rural court systems, which have largely escaped the attention of scholars and policymakers. (18)

This Article seeks to fill this gap by evaluating how public defense institutions that provide immigration expertise have evolved after Padilla. We approach this problem by studying the post-Padilla development of public defense practices in California, the state with the largest immigrant population in the country (19) and a national leader in immigration policy. (20) Because California has not adopted a statewide system for public defense, (21) each individual county is responsible for funding and structuring the provision of appointed counsel for its residents. (22) California counties have thus become a laboratory for local experimentation with the representation of immigrants charged with crimes. California's laboratory is especially useful for an academic study because it holds constant many features of the criminal system, such as the court system and criminal code, while allowing for local variation in defense organization. And the stakes in California--where one out of every four residents is foreign born--could not be higher. (23)

To investigate indigent representation in California, we pursued a mixed-methods approach (24) that included surveys and interviews with public defenders across the state's fifty-eight counties. (25) Our study--the first of its kind--yields three important sets of findings.

First, our research provides a comprehensive picture of the current structure of public defense in California, with particular attention to how immigration expertise is distributed within the different county ecosystems. We find that the fastest-growing model for immigrant representation in the state is one in which the county's public defender hires one or more dedicated experts. (26) These immigration experts--who are also sometimes referred to as "Padilla attorneys," "criminal immigration specialists," "immigration defense attorneys," or "immigration attorneys"--are lawyers who have mastered the complex intersection between immigration and criminal law. (27) Although most large counties now have immigration experts on board, many medium-sized counties with sizable budgets and noncitizen populations have not invested in staffed immigration experts or paid contracts for expert consultations. These counties have instead opted to consult informally with immigration practitioners or represent clients without the benefit of such expertise. We find that the challenge to Padilla implementation is most acute in small and rural counties that rely on solo practitioners and small law firms to handle their indigent caseloads and for the most part have not yet adopted a protocol for representing their immigrant clients. (28) The underdevelopment of public defense structures in small and rural counties is rooted in the historical development of California's county-run defense system, a topic we address in Part I. Thus, any comprehensive solution to Padilla implementation must grapple with the challenge of structuring indigent defense in these smaller counties.

Second, this study contributes a nuanced understanding of how the so-called "Padilla advisal" is understood and delivered by public defenders. Our interviews and survey data provide a rich, descriptive account of how defense lawyers specializing in the intersection of criminal and immigration law perform their counseling obligation under Padilla. Our project reveals the sophisticated information gathering, legal analysis, plea-bargaining advocacy, and client counseling required to provide a quality Padilla advisal and to prevent undesirable immigration consequences. These findings add urgency to the recommendations we offer in the Conclusion, such as establishing clear protocols for interviewing and counseling immigrant clients and adopting statewide practice standards for Padilla advising. We also document the caseloads of immigration experts across the state and, based on these data, recommend a caseload maximum for immigration experts of no more than 1,500 Padilla consults per year. (29)

Third, we identify the range of tasks beyond the basic Padilla advisal that immigration experts who work within public defender programs undertake. These tasks include other core Padilla functions such as providing assistance in presenting plea negotiations to prosecutors and training office attorneys about the immigration consequences of common criminal charges. They also encompass other undertakings that are of great importance to immigrant clients, such as monitoring compliance with state and local sanctuary laws, obtaining postconviction relief on convictions that subject clients to adverse immigration consequences, and representing clients in...