When the Supreme Court decided in Padilla v. Kentucky that the burden of informing defendants of the collateral consequences of a plea, a burden that I argued should be rightly on the shoulders of the court rather than the lawyer, the question remained whether the duty to inform about collateral consequences of a plea was limited to immigration or everything in the world.
University of Arizona lawprof Gabriel Chin wrote about the extent of the burden imposed by Padilla.
Padilla held that defense counsel have an ethical obligation to advise their clients of the possibility of deportation when pleading guilty. The inescapable logic of Padilla is that counsel’s duty will extend to warning about other serious collateral consequences as well. Putting more demands on overburdened defense counsel raises a number of issues. First, how can public defenders, who are already challenged in providing basic representation add more to their duties? Second, how can defense counsel, who are not specialists in collateral consequences, be aware of the hundreds or thousands of potential collateral consequences which could apply in any given case?
Are there really “thousands” of potential collateral consequences? It’s possible, and indeed changes with every defendant and every situation. And it’s our responsibility to not only identify every one, but correctly predict the impact it could have.
Coming from Arizona, it’s easy to understand why Chin would be concerned about the direct consequences of collateral ones, such as immigration. Arizona isn’t particularly fond about its residents with surnames ending in vowels. But Chin sees an upside.
Although Padilla means more work for defense attorneys, it also promises better outcomes for clients.While this may come as a surprise within the Academy, lawyers have been arguing collateral consequences in mitigation of sentence on pleas forever. It’s, well, obvious. Ever since the words “aggravated felony” entered the immigration discussion, it changed the landscape of criminal defense. Any lawyer who didn’t argue that, since the defendant would be sent to his motherland upon release, a shorter sentence was in everyone’s best interest was just dumber than a brick. Heck, even bricks knew enough to make the point.
Sometimes it worked. Sometimes it didn’t. Eventually, many prosecutors figured out that if non-citizens realized that they could get a sweat deal on prison because of their subsequent deportation, it took some of the sting out of deterrence. And, of course, they might be of the sort inclined to re-enter despite it being illegal. Legality, prosecutors argued, wasn’t something the defendant was very concerned with.
But the duty under Padilla bore no relation to what the defendant would do with the information about collateral consequences. The duty is to inform. Lawyers have long been informing defendants about relevant collateral consequences, not because the Supreme Court made it a duty but because it was what any half-competent lawyer did on behalf of his client. The client would then proclaim that he didn’t want to be deported. No surprise there, but they usually don’t want to go to jail or prison either. In fact, they would have been pretty happy to never have met (and paid, if that was the case) their criminal defense lawyer as well.
There is nothing happy or good about being subject to prosecution. While the collateral consequences can be potentially ruinous, it’s not like prosecution with no collateral consequences at all is a walk in the park. The direct consequences of a guilty plea, incarceration, a criminal history, are pretty significant on their own, and it only gets worse from there.
The discussion about collateral consequences isn’t a whole lot different than the discussion about guilty pleas in the first place. The options are laid on the table, with an explanation of what they mean. At the time the plea is under discussion, there are three general alternatives:
1. Take the plea.
2. Try to get a better plea offer, with the recognition that it may not come and the prosecution may pull the existing plea off the table.
3. Go to trial.
There are a number of variations within those options, such as obtain additional discovery, move for dispositive relief, do additional investigation, which may apply given the circumstances of the case. And then there are the additional problems that may be raised by these options, that delay or fighting will result in withdrawal of a plea offer and leave the defendant without options. Or that the demonstration of seriousness in fighting the charges will compel the prosecution to sweeten the offer, even dismiss the charges. It can happen, but it’s all a matter of risk tolerance.
With surprising frequency, collateral consequences can be monumentally harsh. Consider the non-citizen who came here at 3 months of age and spent the next 37 years living, working, paying taxes, raising a family, before arrest. Or the physician who struggle to do well in high school, college, medical school, internship, residency, fellowship, before prosecution.
The enormity of consequences for relatively trivial offenses, the sort of stuff that someone else might shrug off as a really bad day, like a simple assault or drug possession, essentially undermines their life. The discussion often ranges from whether they are prepared to plead guilty and get a year in jail and deportation or loss of license, or roll the dice and face five years and deportation and loss of license.
Which one does Chin see as the “better outcome” that Padilla promises?
The real issue has nothing to do with informing defendants of the collateral consequences they face as a result of a guilty plea, but whether collateral consequences can be bootstrapped into a deal that prevents collateral consequences from coming into play. There’s nothing new about this, however, and any lawyer who failed to use collateral consequences as an argument in plea discussions to obtain a less onerous deal failed to do his job.
Of course, the more enlightened point is that the sanction imposed for a plea of guilty should be that imposed by a judge, taking into account the relevant facts and circumstances of the offense and the individual. The collateral consequences aspect, despite being characterized as civil in nature and beyond the jurisdiction and concern of the criminal court judge,is mere piling on in knee-jerk, mandatory fashion, just as mandatory minimum sentences bear no reflection of the legitimate purposes of sentence.
That we call them “collateral consequences” reflects the disconnection between the act of prosecution and the reality that defendants will experience despite whatever happens in the courtroom. A defendant who pleads guilty of selling a dime bag of marijuana will suffer collateral consequences equally harsh as the defendant who sells a kilo of heroin.
The only thing Padilla adds to the equation is who is responsible for delivering the bad news. And nobody likes the bearer of bad news.