Few cases generate as much heat amongst practicing lawyers than Padilla v. Kentucky, the Supreme Court decision requiring criminal defense lawyers to correctly advise non-citizen defendants who plead guilty of the immigration consequences of the plea, unless the consequences are unclear. 

Since my earlier discussion of the decision, and its flaws, some of the brethren have sought to provide some helpful information.  Gideon, at A Public Defender, offers this:

Never fear. Here’s a   practice advisory on Padilla, and more importantly, on pages 7-8, a list of deportable offenses and tips on how to approach a case with immigration consequences.

The advisory also points to several great resources on immigration consequences in criminal courts.

You can thank me later.

There’s nothing better than the simple life, where a handy “cheat sheet” gives a laundry list of everything you need to know.  Print it out. Carry it to court. Be brilliant.  Except…that’s not really the problem.  The problem is that the Padilla duty is largely a no brainer at the extremes, where the immigrant defendant pleads to possession of 457 kilos of cocaine with intent to sell (it’s a little large for personal use anyway), or doing 37 in a 35 mile per hour zone, with or without your windows excessively tinted.  The problem is toward the middle of the spectrum, where all this mushy information does little to inform.

What this means for the defense lawyer is clear, but even more interesting is what it means for the prosecutor who is concerned about making sure his guilty plea sticks.  Enter former TV star and Justin Bieber body double, Ken Lammers at CrimLaw to make the point.

It’s more than a little ridiculous to expect defense attorneys practicing in State courts to understand the intricacies of immigration law. How ridiculous? Well let’s look at the list of sources which Justice Stevens uses to back his claim that it is a normal standard of practice for defense attorneys to be fluent in and advise clients as to immigration law:

National Legal Aid and Defender Assn., Performance Guidelines for Criminal Representation §6.2 (1995); G. Herman, Plea Bargaining §3.03, pp. 20–21 (1997); Chin & Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 713–718 (2002); A. Campbell, Law of Sentencing §13:23, pp. 555, 560 (3d ed. 2004); Dept. of Justice, Office of Justice Programs, 2 Compendium of Standards for Indigent Defense Systems, Standards for Attorney Performance, pp. D10, H8–H9, J8 (2000) (providing survey of guidelines across multiple jurisdictions); ABA Standards for Criminal Justice, Prosecution Function and Defense Function 4–5.1(a), p. 197 (3d ed. 1993); ABA Standards for Criminal Justice, Pleas of Guilty 14–3.2(f), p. 116 (3d ed. 1999).

Hard as it is to admit, Ken is right.  We don’t read hornbooks, law review articles or (gasp) the ABA standards (on anything whatsoever) in the regular course of our practice.  Court decisions, all the time.  The rest,

we have a widely disparate set of habeas-bait “standards” (invariably impossible to follow: see this post), never used procedural books (I’d even go so far as to say never heard of, but someone out there must have), ABA standards which laughed at by actual practitioners (actual criminal law attorneys don’t have time to waste with that organization), and a law review article (you’re kidding?!? tell me you’re kidding).

Ken used to be a criminal defense lawyer before he turned to the dark side.  He knows stuff.  And what this means is that the plea he worked out so carefully will be subject to all manner of challenge afterward for failure by the defense lawyer to either comply with Padilla, or be accurate.

So, getting back to reality as the Supreme Court has now defined it for us, what are the practical effects on the ground? Well, we know that a lot of attorneys aren’t going to pro-actively advise the possible immigration consequences of a conviction. We also know that even when they do there will be appeals and habeases in which the defendant claims that he wasn’t notified. Hopefully, judges will start adding the question to the plea colloquy, “Are you aware that if you are an immigrant a conviction may effect your immigration status?” Unfortunately, I can’t do anything to effect that change.

But that doesn’t mean that prosecutor Ken plans to take Padilla lying down, waiting for the defendant (and his immigration challenged lawyer) to spring the trap.

I can change the language in my plea agreements. Henceforth, all my plea agreements will contain the following language:

 

Immigration Consequences: The defendant understands that if he is an immigrant any conviction may effect his immigration status and that federal law allows deportation for drug convictions.

I suggest that any prosecutor out there develop similar language and insert it into their pleas until such time as the judges have changed their colloquies.

While I think Ken’s on to something, I’m not convinced that his language is going to cut the mustard.  But if copies pages 7-8 of Gideon’s practice advisory, staples it to plea form, squints a bit and prays that nothing even remotely relating to the defendant’s charge or prior criminal history happened in another jurisdiction, he might be able to squeeze it through.

You can thank me later too.