Via Carolyn Elefant at Legal Blog Watch, the Supreme Court has granted cert in a Padilla v. Kentucky which raises a variation on an old theme: What is the role of collateral immigration consequences of a guilty plea, and who takes the heat when things go wrong.

The facts from the Kentucky court’s decision are fairly straightforward. Jose Padilla (no, not that Jose Padilla) is a Honduran national and Vietnam veteran who lived in the United States for decades but never became a citizen. Padilla was arrested and charged with several drug-related counts including trafficking five pounds of marijuana. Padilla’s attorney negotiated a guilty plea under which all but the marijuana charge would be dismissed, and further, where Padilla would serve five years of an otherwise 10-year sentence. Padilla asked his attorney about the impact of the plea on his immigration status and his lawyer assured him that Padilla would not be deported since he had lived in the United States for so long. With that, Padilla accepted the plea. Two years later, believing that the government was preparing to deport him, Padilla filed a post-conviction motion to withdraw the plea, arguing that his attorney’s erroneous advice constituted ineffective assistance of counsel in violation of the Sixth Amendment.

When Congress decided in 1990 to make deportation an automatic consequence of conviction of an “aggravated felony,” a curious term since it didn’t necessarily require a felony and was only certain to aggravate the defense and judge, it created much heat and debate about who, if anyone, was responsible for advising non-citizen defendants that a guilty plea would result in deportation after a term of imprisonment was served, and that there were few, if any ways around it.

As set forth in the amicus brief for cert, there is a 27 to 3 split in state and federal courts on whether defense counsel has an affirmative duty to advise the defendant of the immigration consequences of a guilty plea.  But this case involves a variation on the theme, where Padilla asked his lawyer what would happen and the lawyer gave him the wrong answer.  Relying on that answer, Padilla took the plea.

Since the change in immigration law in 1990, the question of who is responsible for informing the defendant of the immigration consequences has been a subject of debate and dispute.  Nobody, including defense counsel, wants to be saddled with it, both because it gives rise to terrible arguments (“but how can I be deported when I’ve lived here for 50 years?”), leaving the lawyer to justify this insanely harsh and irresponsible consequence when it wasn’t his choice to begin with, as well as severely muddying up the decision-making process on whether to take the plea. 

Too often, a defendant would want the benefit of the plea bargain, but for the immigration consequences.  This would create a dilemma, given that the alternative was to reject the plea, go to trial, and suffer the consequences of a loss, including post imprisonment deportation.  It drove everyone nuts, as it was an extremely emotional problem, more so than just the imprisonment for the crime.  The idea of being deported to a country one left at age 2, after living here for decades and having a family, children, a business, whatever, at risk. 

While I personally undertook to explain this to defendants, I also contended that the responsibility for informing defendants of collateral immigration consequences should be on the judges’ shoulders.  Of course, judges didn’t want it either, knowing all too well of the problems it would cause in getting deals completed.  And so, collateral immigration consequences largely floated in the vapor, with many defendants finding out after it was too late.  Not that it rationally changed much, but it fell far short of a fully informed plea.

But the variation in Padilla’s case is quite different.  Here, it was not merely a matter of Padilla being informed, but of being misinformed.  The Kentucky Supreme Court held that since immigration consequences were collateral to the direct consequences of the guilty plea, the erroneous information given by the defense lawyer did not violate Padilla’s 6th Amendment right to effective assistance of counsel.  This is not say that Padilla’s lawyer should win an award for a job well done, but was the error of sufficient constitutional significance to compel the court to undo the damage.

The majority rejected Padilla’s argument, explaining that the lawyer’s advice on immigration status was collateral to the criminal defense component of his representation, to which the Sixth Amendment right to effective assistance of counsel is attached. The minority disagreed, finding that whether collateral to Padilla’s defense or not, the lawyer’s erroneous advice, in response to an affirmative inquiry by the defendant, was inexcusable and justified a hearing on the ineffective assistance of counsel claim.

The defendant’s decision to plead guilty, and consequently waive the array of rights theoretically due him, must be knowing, intelligent and voluntary.  While these three words are honored primarily in the breach, this is a case where the breach is raised directly.  Jose Padilla took the affirmative step of inquiring of his lawyer whether he would be deported as a result of his plea.  By so doing, he affirmatively established that this was a sufficiently important factor in making his decision that an answer was needed.  By providing the wrong answer, the defense counsel denied Padilla the ability to make a knowing, intelligent and voluntary decision.  Without this, there can be no valid plea.

The Kentucky Supreme Court’s decision, that the issue was collateral, seems to miss the point, by substituting their subjective judgment on what is a material issue to Padilla in making the decision to plead guilty.  The majority concluded that it was not an objectively valid direct consequence, which of course is consistent with the majority of courts that have considered the primary duty to inform a defendant of collateral immigration consequences.  However, that wasn’t the real issue in this particular case.

The decision to plead guilty or go to trial is a personal one to every defendant, and the relative importance of various factors to be considered is his to make, not a court’s.  Perhaps the defendant, for highly personal reasons, will put huge emphasis on a factor that most of us, and all judges, would consider silly or irrelevant.  So what?  The decision belongs exclusively to the defendant, and he doesn’t need anyone else’s permission or approval to reach his decision in his own way. 

A defendant is entitled to weigh the factors according to his personal needs and values, and make the decision that is right for him, whether anyone else agrees or not.  While there is no doubt a line beyond which a defendant’s inquiry, and an erroneous answer, is just not of sufficient consequence (or perhaps sanity) to merit a 6th Amendment challenge.  But deportation clearly is a real and meaningful factor. 

As Jose Padilla asked, he deserved an accurate answer.  He was grievously misinformed, and relied on that bad information.  His plea, therefore, simply cannot meet the threshold of knowing, intelligent and voluntary.  The fault clearly fell on his attorney, who gave him the wrong answer, and Padilla was entitled under the 6th Amendment to an attorney who would give him the correct answer to any question that impacted on his decision to plead guilty.  While some questions properly produce the answer of “I don’t know,” there is no excuse for being given a totally wrong answer, as happened here.

What’s the solution?  As I’ve argued since 1990, every judge should include in the allocution the collateral immigration consequences of a plea of guilty.  Even if it’s the defense lawyer’s practice to inform his clients, it remains the duty of the judge to make certain that the defendant’s plea is fully informed.  While I agree that deportation is a collateral consequence of a plea, and that there is certainly some lack of clarity about what constitutes an aggravated felony and whether criminal defense lawyers should be expected to have expertise in immigration law as well, the fact remains that a defendant is entitled to effective representation when he obtains an answer to a question in anticipation of a plea.

The moral of the story is that when you answer your client’s pre-plea questions, you are responsible for giving them the correct answer.  It really isn’t that much to ask.

Update:  Remy Orozco at Hostos Civitas and Bobby Frederick have joined the conversation, coming in on the side of the defense counsel being solely responsible for informing the client of collateral deportation consequences.

The fact is, no one knows the defendant’s situation like the defense attorney. The judge, and often the prosecutor, often do not know the defendant’s immigration status unless the defense attorney tells them – which does place the responsibility squarely on the shoulders of the defense lawyer. I agree with Remy that an attorney who ignores the fact that his client is not a legal resident, or does not inquire, is committing malpractice.

Therein lies my problem.  The defendant doesn’t need a cause of action for malpractice, but a way to address a 6th Amendment deprivation when defense counsel blows it.  I can’t fault either, of course, for their dedication to the best interests of the defendant.