If only there was a Vegas line on the outcome of Supreme Court cases, I would have made a killing on Padilla v. Kentucky, decided yesterday. When in doubt, shift the burden onto the criminal defense lawyer. It’s not the outcome I wanted, as discussed when cert was granted and again when oral argument rolled around. What else is new?
There was never any question that immigrants should be advised that a plea of guilty to an “aggravated felony” had immigration consequences. The question was who was responsible for doing so. The wrinkle in this case, of course, was that Padilla had been affirmatively misadvised that his plea would not have consequences, which every defense lawyer should know was dead wrong.
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.
As argue, the court, in taking the plea, provides a laundry list of rights and impacts that affect the defendant. This should be among them. Now, it’s not. Now, it’s another burden on defense counsel. But the Supremes went a step farther in Padilla, not merely requiring defense counsel to be responsible for advising the defendant that it may have consequences, but advising the defendant of what those consequences will be. And getting it right.
Clearly, a good lawyer will advise his client of these things, regardless of whether the Padilla decision forced the burden upon him. He will do it because his duty compels him to serve his client, and no defendant can make a knowing decision to plead guilty without understanding everything, including immigration consequences, it entails.
What’s unclear, however, is how the court could impose a burden on defense counsel to predict the future, and in a different legal specialty no less.
Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward (as it is in many of the scenarios posited by JUSTICE ALITO), a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.
How does one distinguish between knowns and unknowns? The answer invariably comes afterward, when an immigration judge or court decides. It is true that most felonies will result in near certain deportation or removal, and it can’t hurt to inform the defendant that their plea means they’re out of here. But it still won’t necessarily be accurate. And the fault for inaccurate advice falls on the criminal defense lawyer rather than the court because, well, it’s always easier to lay blame on the lawyer.
The decision also holds an interesting tangent in its discussion of collateral consequences, where it suddenly blows the smoke away from the legal fiction that separates criminal from civil consequences.
Although removal proceedings are civil in nature, see INS v. Lopez-Mendoza, 468 U. S. 1032, 1038 (1984), deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century, see Part I, supra, at 2–7. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it “most difficult” to divorce the penalty from the conviction in the deportation context. United States v. Russell, 686 F. 2d 35, 38 (CADC 1982).
Yup, it is most definitely “intimately connected.” And isn’t that precisely the same for civil asset forfeiture? And doesn’t that reasoning extend to habeas corpus as well? The false dichotomy between civil and criminal proceedings and penalties is a foundational legal fiction, used to deny the full panoply of rights assured the defendant by the Constitution whenever it makes the government’s job easier. The Supremes have now pulled back the curtain and shown it to be a fraud. Just as immigration consequences, though given the name “civil” and collateral, are now part of the bag of duties of criminal defense counsel, let’s keep that ball rolling to all the other fictional proceedings that are equally a part of the criminal process but hidden behind legal fictions.
As for the Padilla decision, the most likely impact will be that every criminal defense lawyer will advise every noncitizen defendant that he’s going to be deported, whether that’s the case or not. The plain truth is that, to the extent there’s a potential way out of the fix, it’s far too distant to figure out and any suggestion to that effect will open the door to being the target of a subsequent ineffective assistance of counsel accusation. Tell them the worst case scenario and you can’t go wrong.
But there is another angle here, that the Supreme did not consider. What if every criminal defense lawyer advises his client, with a wink and a kind smile, that the conviction won’t result in deportation based on an excess of optimism and a hope that the absurdity of our immigration laws will be changed once Congress wakes up from its nap? Might every plea be subject to vacation, with an admonition to the lawyer that he has ill-served his client by providing a backdoor to America?
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Supreme Court Says Lawyers Must Advise Clients of Consequences of Guilty Plea
What sets us lawyers apart from computers or services like LegalZoom is our ability to counsel clients and help them make decisions. Counseling clients is the very essence of what we do as lawyers — so much so that failure…
I blogged about this yesterday and saw it differently. I think the USSC made clear that an advisement that “you might be subject to deportation” is good enough when the issue isn’t clear (like it was in Padilla since that conviction was certain to result in deportation under the applicable federal statute).
In Orange County, our guilty plea forms take out the word “may” and replace it with “will.” This, of course, makes the advisement totally inaccurate, but greatly decreases the likelihood that a defendant can successfully seek to withdraw his plea by motion or habeas corpus writ later on. This is exactly what you predict many attorneys will do post-Padilla: “tell [the client] the worst case scenario [even if inaccurate] and you can’t go wrong.”
Time to return to the JRAD.
SHG: Can you please delete the second paragraph of my prior post if possible?
As to that facet of the decision, most of the time it is abundantly clear that deportation will result. The problem is always in the edges, whether it falls into the clear/unclear continuum, and the burden is on the criminal defense lawyer to get it right.
Yes. Yes I can. And I did. But now you have this comment about deleting the now deleted second paragraph, to contend with. Is there anything else you would like me to do.
The weird thing is that after you deleted it, I thought about asking you to delete my request so people didn’t think that I had second thoughts about the (new) second paragraph, like I was afraid of exposing Orange Co’s dirty little secrets or something.
I refrained, however, largely because I feared you would turn my request into a post about the audacity of new bloggers who think they have the right to control you — particularly asshole former prosecutors who falsely perceive themselves as having something relevant to say about criminal defense.
If I sound insecure, it is because I am. But at least I’m not suffering from undue self-esteem (see “A Slap In The Face, supra).
Nah, I figured you could handle a little joke, and frankly have no issue with someone having a second thought about a comment. In fact, I invited people to do so, and am generally happy to comply. So don’t feel badly, and no worries about the audacity of new bloggers.
Wow, you may have never written a post with which i disagree more, Scott.
First of all, you, Brian and Orange County’s Tahl forms are all wrong, advising a defendant “You will be deported,” when the law is clear that she will not based on the charge they are pleading to, is now IAC. The decision doesn’t require any CDL to become an immigration law expert, it requires them to do what they should have been doing all along (remember how low the bar is for “competency” in our profession?), have basic familiarity with an area of law that impacts their clients in huge ways and, more importantly, ways directly related to the CDL’s representation of that client. Many times, we can save our clients’ deportation by changing their sentence from 365 to 364 days or convincing a prosecutor to change to a different, but equivalent, charge, but not if we don’t have some basic understanding of the interplay between criminal convictions and deportation proceedings.
Quite apart from the misreading of the case, I’m sorry to see you bemoan “another burden” on yourself rather than cheer the decision for our clients. This was not a question of who should advise the client, but if they were entitled to advisement at all and/or if they were incorrectly advised whether they had any remedy. Even if it was a question of who, wouldn’t you prefer that be our responsibility, rather than the courts? Perhaps the court should just go ahead and advise our clients as to whether or not they should plead guilty to the criminal charges too or what chance they stand at trial? It would lift a great burden from our shoulders, after all.
Lee,
For the record, I wasn’t suggesting that OC’s Tahl forms were a good idea. They are clearly dead wrong in a good number of cases. Nor would I ever suggest that a defense attorney should give this advice when it isn’t true.
I also don’t think Scott’s prediction that this is what attorneys will now advise was exactly an endorsement of inaccurate/lazy advice, either. I know he can speak for himself, but he might be too shy to do so.
What I think it should be, and how it will play out, are different things.
I have long believed that defendants must be advised of immigration consequences or they cannot make a voluntary, knowing and intelligent decision to plead guilty. And yes, I believe that the duty should be on the court, though I similarly believe that any defense lawyer who hasn’t thoroughly discussed every consequence, including immigration, with his client has failed to fulfill his duty. But as you realize, these are two separate duties.
The problem with Padilla is that there is no way that the defendant is assured of being properly advised. The defense lawyer is now required to inform his client, and the judge may or may not ask whether he’s done so. But whether he’s done so properly and correctly may never be known, and still the plea will go through.
You and I both know that CDLs will screw this up, no matter whether a half competent lawyer ought to be capable of providing complete advice or not. So has anybody been saved? Tell me who amongst criminal defense lawyers needs this decision to know that he’s got to deal with immigration consequences? If they don’t know it by now, do you really think this decision will suddenly make them figure out how to do their job?
As for burdens on the CDL, it is always one as much as it’s our duty to defend our clients. But the legal duty aspect must belong to the court, lest we remove the responsibility from the judge to assure that every plea is knowing, voluntary and intelligent. That’s the judges job.
As for your Orange County Tahl forms, I’ve got no clue what they are since I don’t live on the left coast. You and Gurwitz can fight that out.
Sorry for taking so long to reply. My point wasn’t necessarily that this decision will instantly turn lazy CDLs into immigration experts who fully and correctly advise their clients on immigration consequences, but it will do two things, both of which I consider good results.
1. CDLs, particularly when a client has indicated that the immigration consequences of a particular disposition are important to his decision to enter into the dispo or not, may be more likely to go research the issue or talk to an immigration lawyer on behalf of their client as it has now been explicitl labeled our responsibility rather than doing what many (including myself) have done previously, which is tell them that chances are they will be deported if they are not citizens and that if they require further advisement on the issue they should talk to an immigration attorney (offering to get the client phone numbers of immigration attorneys).
2. When that duty is not fulfilled, the client has recourse. This, obviously, is the best part of the decision to me. Yes, we all know CDLs have and will continue to screw this up. Now the client is not screwed as a result.
W/R/T, the OC Tahls and verbal advisements and waivers by the court, my guess is that they will continue to be deficient in that, rather than correct advice, they will to continue to advise as to the worst case scenario. I suppose this is probably still the more prudent approach as only potential harm that could come in reliance on such advice is that a client decides to proceed to trial rather than resolve her case (because advised that she SHALL be deported, when such is not the case) and gets hurt at sentencing.