It’s a far more serious problem than people realize, and it’s about time that the American Bar Association recognized it and dealt with it.  Given that lives hang in the balance, the ABA has  established a committee.

The question of whether the role of the criminal defense lawyer has been affected by the U.S. Supreme Court ruling in Padilla v. Kentucky, 08–651, will be the focus of a task force established last week by the American Bar Association’s criminal justice section.

The goal is to explore the obligations on lawyers to advise clients about the consequences of criminal convictions and help criminal defense lawyers understand and meet those responsibilities.

Up to now, apparently, a broad swathe of the criminal defense bar was unaware of the fact that collateral consequences, whether immigration, registry, child custody, housing and employment, flowed from criminal convictions.   It’s not just imprisonment anymore, you know.

While the criminal justice section has a question about this, so do I.  Should we really have lawyers defending the accused who are brain dead?  It seems to me that the lack of a working, thriving, viable brain is a more fundamental problem. 

The problem, you see, has nothing to do with the Supreme Court’s decision in Padilla, but rather began with the 100th Congress’ passage of the Anti-Drug Abuse Act of 1988, which created “aggravated felonies” that mandated deportation in order to get nasty drug dealers with Hispanic surnames out of the country.  While the issue of who was responsible for telling defendants that they were going to be deported raged on until Padilla, only the brain dead were unaware of the question.  Seriously, it’s been more than two decades.

The situation has worsened significantly since then, most notably with the popularization of Sex Offender Registries to keep parents awake at night when they learn that a child molester has moved in Next Door, and prevent recidivist public urinators from soiling peonies.  How many criminal defense lawyers were unaware that this was happening?  It was in all the papers.

Regardless of whether the failure to advise fell on the shoulders of the criminal defense lawyer (as it happens via Padilla) or someone else (as I’ve long argued should be the judge or prosecutor), the legal duty and concomitant consequences bear no necessary connection to what any criminal defense lawyer with half a working brain should have been doing all along. 

It is fundamentally inconceivable that any lawyer could advise a defendant without incorporating the collateral consequences into her advice.  Therefore, it is inconceivable that in the year of our Lord, 2010, the ABA criminal justice section could establish a task force to address the critical inquiry of whether Padilla, a decision more than 20 years in the making, changes the role of the criminal defense lawyer.

Does this mean that for the past two decades, there were lawyers who were either unaware that there were devastating collateral consequences or couldn’t be bothered telling their clients that copping the plea to probation was about to destroy their lives?

And the ABA needs to form a task force to figure out whether this is a problem?

There are some real issues underlying this sea change in criminal defense, well pointed out by the reactions of my old pals, Lisa Schreibersdorf (head of Brooklyn Defenders) and Robin Steinberg (head of Bronx Defenders).

Ms. Schreibersdorf said that since October 2009, she has hired two immigration attorneys who are available to the office’s lawyers to provide advice about the possible adverse immigration consequences of pleas.

Robin Steinberg, the executive director of the Bronx Defenders, said her office for many years has had four immigration attorneys available to advise its defense attorneys on immigration issues.

In some instances, she said, such as where a prosecutor makes a plea offer at arraignment, the office’s lawyer needs accurate information immediately. The four immigration lawyers are scheduled to be on call for set periods, including night arraignments, she said.

This doesn’t help the private bar, of course, since they can’t keep lawyers on staff just in case.  Then again, that’s why the United States Department of Justice  put out a handy-dandy  92 page pocket reference on immigration consequences.

Of course, nobody has even begun to figure out the interstate implications of sex offender registry warnings in advance of a plea.  There are just way too many bridges under which they may be forced to sleep some day.

Obviously, I am in awe of the importance of the ABA in the daily practice of law for criminal defense lawyers across the nation.  It’s therefore not entirely surprising that for the past two decades, lawyers stood in court drooling rather than advising their clients, whether it was their Padilla duty to do so or not, that the quickie plea would mean they could never see their children again.  After all, if the ABA doesn’t tell them, how can they be expected to know that they should explain everything that affects the decision to their clients, as if they were real lawyers and actually gave a damn.

I speculate that this blue ribbon task forces arrives at the conclusion that it would be really cool if lawyers explained to defendants what they are getting into, and that might mean that those lawyers who spent the past two decades awaiting the word of the ABA before treading into such dangerous waters as competency, will have to change the way they practice.  But once they do that, maybe they can figure out how lawyers are supposed to stay abreast of every change and permutation, federal, state and local, of non-criminal, life-changing consequences dumped on top of whatever criminal sentence a court might impose?

Better still, maybe the ABA, composed of so many powerful and persuasive people, could refocus its task force on the propriety of using collateral consequences dreamed up by every hillbilly legislator and congressman, to create secret punishments to be named after dead children or trotted out for the next campaign?  Yeah, I’m sure that’s the next task force on their list.