The Supreme Court heard oral argument yesterday in Padilla v. Kentucky, a case in which the defendant claimed that he was denied effective assistance of counsel because his lawyer totally blew it by advising him that his plea to felony marijuana possession would not result in his deportation.  Of course, that was totally wrong.

Ever since America decided that it had enough, rather than embraced, immigrants, strict bases for deportation have served to thin the herd without mercy or reason.  A guy like Padilla, who was a permanent resident who had lived in the United States for 40 years and served in Vietnam, was nonetheless subject to the collateral consequence of deportation, without any chance of waiver, by his plea to an “aggravated felony.”  Every felony is aggravating, by the way.

According to the New York Times, the justices, even Alito, were sympathetic to Padilla’s plight, recognizing that deportation, on top of whatever punishment was due for the crime itself, was incredibly harsh given his circumstances.  The argument centered on whether his lawyer, who clearly gave the wrong advice, had denied Padilla effective assistance.  The opposition is that the erroneous advice was on a collateral matter, not the criminal representation itself, and hence shouldn’t be a basis to vacate the plea.

This has been a long-standing issue, and one that has been batted back and forth within the criminal defense bar.  The problem arises from the fact that the criminal conviction stemming from a plea triggers immigration consequences separate from criminal consequences.  Criminal defense lawyers aren’t immigration lawyers, and often lack the background to provide adequate advice on the impact of a criminal plea on immigration status.  On the other hand, it is definitely a significant consequence, sometimes more so than the criminal punishment itself, and it’s absolutely reasonable to expect a person making a life-changing decision to have all necessary information about the consequences of his actions before he decides.

The problem this has long posed for me is whether the burden of informing a defendant of the consequences of his plea should ultimately fall on the defense lawyer or the court.  During the plea allocution, it’s incumbent upon the court to inform the defendant of his sentence.  Every aspect of his sentence.  But not of the immigration consequences of the plea.  This is because it’s not deemed a part of the sentence, but a collateral consequences.  This reflects a bit of legislative sleight of hand, calling a direct consequence of monumental proportions civil and collateral, even though it is directly and inevitably triggered by the plea.

The best answer any criminal defense lawyer can give to the question is “probably”.  There are some occasional exceptions to the rule, and sometimes defendants fall into the cracks in the immigration system, where no one will come after them for deportation, but they can still get caught if they leave the country and try to re-enter.  By and large, though, the answer is that deportation is the secret punishment on top of the sentence they bargained for,

Why is this not a responsibility of the court in the allocution, otherwise required to inform the defendant with specificity of the sentence to be imposed?  It’s a matter of form over substance.  Deportation is every bit as much a part of the game as incarceration, and yet never mentioned as a consequence of the plea by a court.

As for Padilla’s issue, it strikes me that the better answer than ineffective assistance of counsel is that the plea was not entered into knowingly, voluntarily and intelligently.  The false separation between criminal sanctions and collateral civil consequences is meaningless to a defendant faced with a choice of whether to take a plea or go to trial.  No intelligent decision can be made in the absence of all legal consequences, no matter how Congress has chosen to artfully frame them to keep them under wraps.

And then, of course, there’s the problem of the harshness, sometimes the absurdity, of automatic deportation.  For those whose reaction is, so don’t commit a crime, it’s hardly that simple.  The wealth of opportunity to be charged with a crime is so broad as to make ridiculous the suggestion that leading a law-abiding life is the cure-all.  When someone is facing decades in prison, though innocent of any crime, plea offers to probation look awfully attractive.

Moreover, some non-citizens are every bit as much Americans as anyone else.  Consider the 50 year old man who arrived here at 6 months of age, never knew his “homeland”, never spoke its language, knows no one there.  He’s not got 3 very American kids, some medals from his service in the military and a mortgage.  Yet he’s as subject to deportation as the guy who snuck in through the hole in the fence a week ago.

There are so many flaws in this situation that compel change that it’s about time that the issue came before the Supreme Court.  Unfortunately, it played out, as one would expect, with everyone looking at the screw-up of the criminal defense lawyer.  His failure was certainly very real, but only one of many in this sorry situation.  The best answer isn’t always to blame the lawyer.