Padilla v. Kentucky
Encyclopedia
Padilla v. Kentucky, 130 S. Ct. 1473 (2010), is a case in which the United States Supreme Court
decided that criminal defense attorneys must advise non-citizen clients about the deportation
risks of a guilty plea
. The case extended the Supreme Court's prior decisions in criminal defendants' Sixth Amendment
right to counsel context.
The duties of Counsel recognized in Padilla are broad and include where the law is unambiguous, attorneys must advise their criminal clients that deportation "will" result from a conviction. Second, where the immigration consequences of a conviction are unclear or uncertain, attorneys must advise that deportation "may" result. Finally, attorneys must give their clients some advice about deportation—counsel cannot remain silent about immigration.
in 1950. He later immigrated to the United States and became a lawful permanent resident. Padilla served in the US military during the Vietnam War
and received an honorable discharge. As of 2010, Padilla had been a lawful resident in the United States for more than 40 years.
In 2001, Padilla was working as a commercial truck driver when he was arrested in Kentucky
for transporting marijuana. His defense attorney told him that he "did not have to worry" about the conviction affecting his immigration status, so he pled guilty pursuant to a plea bargain
. However, this advice was incorrect, as Padilla's deportation was virtually automatic. In 2004, Padilla filed a pro se motion for post-conviction relief, alleging that he had been given bad advice from his attorney. Padilla based his argument on Strickland v. Washington
.
The Sixth Amendment
, as interpreted by the Court in Gideon v. Wainwright
, guarantees criminal defendants competent counsel. If defendants receive ineffective assistance of counsel
, they may be able to get their convictions overturned. Padilla argued that the bad advice he had been given was ineffective assistance and therefore his conviction breached the Sixth Amendment. Padilla won his case in the Kentucky Appellate Court, but the Commonwealth requested the Kentucky Supreme Court
hear the case on discretionary review
. That court applied a harsh version of the collateral consequences rule, reasoning that whether Padilla’s attorney failed to advise him or affirmatively misadvised him before his plea made no difference. The court held that even affirmative misadvice about deportation provided no grounds for relief under Strickland.
As the Supreme Court agreed to hear it, the case posed two questions: (1) whether the mandatory deportation
that results from a guilty plea to trafficking in marijuana is a "collateral consequence
" and counsel is thereby relieved of an affirmative duty to advise his client about it in accordance with the guarantees of the Sixth Amendment; and, (2) assuming deportation is a "collateral consequence", whether counsel's gross misadvice about deportation constitutes a ground for setting aside a guilty plea that is induced by that advice. Ultimately, the Court re-framed the case in a way that made the collateral consequences doctrine irrelevant.
began his analysis by tracing the history of federal immigration law and its close historical connection between a criminal conviction and deportation. Ninety years ago, deportation occurred only for a narrow class of crimes and even then was discretionary. Over time, that discretion has been limited, and the class of deportable offenses has expanded. Now, a conviction for drug trafficking means removal is “practically inevitable”.
As a threshold matter, the Court declined to apply the direct/collateral consequences distinction that had developed in the lower courts, a distinction the Supreme Court itself had never recognized. The Court instead emphasized that deportation is a unique and "particularly severe penalty." In addition, although deportation is civil rather than criminal, it has been closely connected to the criminal process for nearly a century. Given this connection, it was difficult for the Court to classify deportation as either a direct or collateral consequence. Regardless of whether the collateral consequences rule is an appropriate way of analyzing ineffectiveness cases, a question the Court did not decide, the Court found it “ill-suited” to evaluating Padilla’s deportation-related claim. The court thus concluded that advice about deportation is not categorically removed from analysis under the Court's decision in Strickland v. Washington
, and so applied Stricklands two-pronged test to Padilla’s claim.
The bulk of the Court's analysis focused on the attorney's performance under Strickland. In analyzing the performance prong, the Court first examined professional norms and practices. It determined that the weight of current professional norms indicates that attorneys must advise their clients of the risk of deportation. Specifically, professional standards promulgated by the American Bar Association
, the National Legal Aid and Defender Association, the Justice Department
, and legal scholars all indicate that an attorney must advise his or her client of the risk. Moreover, avoiding deportation may be more important to the client than even averting the maximum sentence of incarceration. Given the gravity of deportation, the Court's expectation was that counsel would consult available practice guides and advise her client accordingly.
Moving beyond the facts of Jose Padilla's situation, the Court decided two further issues. The Court decided counsel may not remain silent, but must provide some advice about immigration consequences. The Court reasoned that a contrary holding would invite attorneys to offer no advice about circumstances that might lead to their clients’ exile. Given this seriousness and the minimal duty imposed, offering clients no advice would be unconscionable and a violation of the Sixth Amendment guarantee. The Court mitigated this newly imposed duty somewhat by holding that when the immigration consequences are not certain and clear, a criminal defense attorney must simply advise her client that a conviction may affect his immigration status. The Court reasoned that immigration law is a separate legal field that is complex and may be unfamiliar to criminal defense attorneys. The Court acknowledged Justice Alito’s point that the deportation consequences of a criminal conviction are often unclear, but reasoned that complexity affected the scope and nature of counsel’s advice rather than obviating the duty to give advice.
Alito parted company with the majority’s attempt to distinguish between immigration consequences that are "succinct, clear, and explicit" and those that are "not ... straightforward". He pointed out, with numerous examples, that determining the correct advice about immigration consequences is often complex. Conversely, to an attorney unversed in immigration law, a single statute read in isolation may seem to resolve an issue, but a careful attorney would need to know how the statute had been interpreted. What’s more, immigration practice guides indicate that it is not easy to tell whether a conviction will trigger removal. In sum, Alito thought that immigration law was too complex to be easily reduced to the court’s clear/unclear dichotomy.
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
decided that criminal defense attorneys must advise non-citizen clients about the deportation
Deportation
Deportation means the expulsion of a person or group of people from a place or country. Today it often refers to the expulsion of foreign nationals whereas the expulsion of nationals is called banishment, exile, or penal transportation...
risks of a guilty plea
Plea bargaining in the United States
Plea bargaining in the United States is very common; the vast majority of criminal cases in the United States are settled by plea bargain rather than by a jury trial. They have also been increasing in frequency - they rose from 84% of Federal cases in 1984 to 94% by 2001. Plea bargains are subject...
. The case extended the Supreme Court's prior decisions in criminal defendants' Sixth Amendment
Sixth Amendment to the United States Constitution
The Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions...
right to counsel context.
The duties of Counsel recognized in Padilla are broad and include where the law is unambiguous, attorneys must advise their criminal clients that deportation "will" result from a conviction. Second, where the immigration consequences of a conviction are unclear or uncertain, attorneys must advise that deportation "may" result. Finally, attorneys must give their clients some advice about deportation—counsel cannot remain silent about immigration.
Background
José Padilla was born in HondurasHonduras
Honduras is a republic in Central America. It was previously known as Spanish Honduras to differentiate it from British Honduras, which became the modern-day state of Belize...
in 1950. He later immigrated to the United States and became a lawful permanent resident. Padilla served in the US military during the Vietnam War
Vietnam War
The Vietnam War was a Cold War-era military conflict that occurred in Vietnam, Laos, and Cambodia from 1 November 1955 to the fall of Saigon on 30 April 1975. This war followed the First Indochina War and was fought between North Vietnam, supported by its communist allies, and the government of...
and received an honorable discharge. As of 2010, Padilla had been a lawful resident in the United States for more than 40 years.
In 2001, Padilla was working as a commercial truck driver when he was arrested in Kentucky
Kentucky
The Commonwealth of Kentucky is a state located in the East Central United States of America. As classified by the United States Census Bureau, Kentucky is a Southern state, more specifically in the East South Central region. Kentucky is one of four U.S. states constituted as a commonwealth...
for transporting marijuana. His defense attorney told him that he "did not have to worry" about the conviction affecting his immigration status, so he pled guilty pursuant to a plea bargain
Plea bargaining in the United States
Plea bargaining in the United States is very common; the vast majority of criminal cases in the United States are settled by plea bargain rather than by a jury trial. They have also been increasing in frequency - they rose from 84% of Federal cases in 1984 to 94% by 2001. Plea bargains are subject...
. However, this advice was incorrect, as Padilla's deportation was virtually automatic. In 2004, Padilla filed a pro se motion for post-conviction relief, alleging that he had been given bad advice from his attorney. Padilla based his argument on Strickland v. Washington
Strickland v. Washington
In Strickland v. Washington, , the United States Supreme Court established a two-part test for establishing a claim of ineffective assistance of counsel...
.
The Sixth Amendment
Sixth Amendment to the United States Constitution
The Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions...
, as interpreted by the Court in Gideon v. Wainwright
Gideon v. Wainwright
Gideon v. Wainwright, , is a landmark case in United States Supreme Court history. In the case, the Supreme Court unanimously ruled that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants who are unable to afford their own...
, guarantees criminal defendants competent counsel. If defendants receive ineffective assistance of counsel
Ineffective assistance of counsel
Ineffective assistance of counsel is an issue raised in legal malpractice suits and in appeals in criminal cases where a criminal defendant asserts that their criminal conviction occurred because their attorney failed to properly defend the case...
, they may be able to get their convictions overturned. Padilla argued that the bad advice he had been given was ineffective assistance and therefore his conviction breached the Sixth Amendment. Padilla won his case in the Kentucky Appellate Court, but the Commonwealth requested the Kentucky Supreme Court
Kentucky Supreme Court
The Kentucky Supreme Court was created by a 1975 constitutional amendment and is the state supreme court of the commonwealth of Kentucky. Prior to that the Kentucky Court of Appeals was the only appellate court in Kentucky...
hear the case on discretionary review
Discretionary review
Discretionary review is the authority of appellate courts to decide which appeals they will consider from among the cases submitted to them. This offers the judiciary a filter on what types of cases are appealed, because judges have to consider in advance which cases will be accepted...
. That court applied a harsh version of the collateral consequences rule, reasoning that whether Padilla’s attorney failed to advise him or affirmatively misadvised him before his plea made no difference. The court held that even affirmative misadvice about deportation provided no grounds for relief under Strickland.
As the Supreme Court agreed to hear it, the case posed two questions: (1) whether the mandatory deportation
Deportation
Deportation means the expulsion of a person or group of people from a place or country. Today it often refers to the expulsion of foreign nationals whereas the expulsion of nationals is called banishment, exile, or penal transportation...
that results from a guilty plea to trafficking in marijuana is a "collateral consequence
Collateral consequences of criminal charges
Collateral consequences of criminal conviction, commonly referred to as the "Four C's" are the additional civil state penalties, mandated by statute, that attach to criminal convictions. They are not part of the direct consequences of criminal conviction, such as incarceration, fines, and/or...
" and counsel is thereby relieved of an affirmative duty to advise his client about it in accordance with the guarantees of the Sixth Amendment; and, (2) assuming deportation is a "collateral consequence", whether counsel's gross misadvice about deportation constitutes a ground for setting aside a guilty plea that is induced by that advice. Ultimately, the Court re-framed the case in a way that made the collateral consequences doctrine irrelevant.
Decision
The Supreme Court reversed the Kentucky Supreme Court's decision. The Supreme Court held that criminal defense attorneys are duty-bound to inform clients of the risk of deportation under three circumstances. First, where the law is unambiguous, attorneys must advise their criminal clients that deportation "will" result from a conviction. Second, where the immigration consequences of a conviction are unclear or uncertain, attorneys must advise that deportation "may" result. Finally, attorneys must give their clients some advice about deportation—counsel cannot remain silent about immigration consequences.Stevens' majority opinion
Writing for the Court, Justice John Paul StevensJohn Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
began his analysis by tracing the history of federal immigration law and its close historical connection between a criminal conviction and deportation. Ninety years ago, deportation occurred only for a narrow class of crimes and even then was discretionary. Over time, that discretion has been limited, and the class of deportable offenses has expanded. Now, a conviction for drug trafficking means removal is “practically inevitable”.
As a threshold matter, the Court declined to apply the direct/collateral consequences distinction that had developed in the lower courts, a distinction the Supreme Court itself had never recognized. The Court instead emphasized that deportation is a unique and "particularly severe penalty." In addition, although deportation is civil rather than criminal, it has been closely connected to the criminal process for nearly a century. Given this connection, it was difficult for the Court to classify deportation as either a direct or collateral consequence. Regardless of whether the collateral consequences rule is an appropriate way of analyzing ineffectiveness cases, a question the Court did not decide, the Court found it “ill-suited” to evaluating Padilla’s deportation-related claim. The court thus concluded that advice about deportation is not categorically removed from analysis under the Court's decision in Strickland v. Washington
Strickland v. Washington
In Strickland v. Washington, , the United States Supreme Court established a two-part test for establishing a claim of ineffective assistance of counsel...
, and so applied Stricklands two-pronged test to Padilla’s claim.
The bulk of the Court's analysis focused on the attorney's performance under Strickland. In analyzing the performance prong, the Court first examined professional norms and practices. It determined that the weight of current professional norms indicates that attorneys must advise their clients of the risk of deportation. Specifically, professional standards promulgated by the American Bar Association
American Bar Association Model Rules of Professional Conduct
The ABA Model Rules of Professional Conduct, created by the American Bar Association , are a set of rules that prescribe baseline standards of legal ethics and professional responsibility for lawyers in the United States. They were promulgated by the ABA House of Delegates upon the recommendation...
, the National Legal Aid and Defender Association, the Justice Department
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
, and legal scholars all indicate that an attorney must advise his or her client of the risk. Moreover, avoiding deportation may be more important to the client than even averting the maximum sentence of incarceration. Given the gravity of deportation, the Court's expectation was that counsel would consult available practice guides and advise her client accordingly.
Moving beyond the facts of Jose Padilla's situation, the Court decided two further issues. The Court decided counsel may not remain silent, but must provide some advice about immigration consequences. The Court reasoned that a contrary holding would invite attorneys to offer no advice about circumstances that might lead to their clients’ exile. Given this seriousness and the minimal duty imposed, offering clients no advice would be unconscionable and a violation of the Sixth Amendment guarantee. The Court mitigated this newly imposed duty somewhat by holding that when the immigration consequences are not certain and clear, a criminal defense attorney must simply advise her client that a conviction may affect his immigration status. The Court reasoned that immigration law is a separate legal field that is complex and may be unfamiliar to criminal defense attorneys. The Court acknowledged Justice Alito’s point that the deportation consequences of a criminal conviction are often unclear, but reasoned that complexity affected the scope and nature of counsel’s advice rather than obviating the duty to give advice.
Alito's concurrence
Concurring in the judgment, Justice Alito largely agreed with the Court's result, but took issue with the breadth of its holding. Alito agreed with the Court that affirmative misadvice gives rise to a valid claim under Strickland, reasoning that requiring attorneys to know the limits of their own expertise is not too high a standard. Alito also concurred that the Sixth Amendment requires counsel to say when a conviction may trigger deportation, but would apply that same, limited requirement regardless of the clarity of the law.Alito parted company with the majority’s attempt to distinguish between immigration consequences that are "succinct, clear, and explicit" and those that are "not ... straightforward". He pointed out, with numerous examples, that determining the correct advice about immigration consequences is often complex. Conversely, to an attorney unversed in immigration law, a single statute read in isolation may seem to resolve an issue, but a careful attorney would need to know how the statute had been interpreted. What’s more, immigration practice guides indicate that it is not easy to tell whether a conviction will trigger removal. In sum, Alito thought that immigration law was too complex to be easily reduced to the court’s clear/unclear dichotomy.
Scalia's dissenting opinion
Dissenting, Justice Scalia would limit the Sixth Amendment guarantee in this context to the likely sentence in a plea bargain, the likely sentence after a trial conviction, and the chances of a conviction at trial. He agreed with Justice Alito’s reasoning about the complexity of immigration law, but concluded that the Sixth Amendment’s text and the Court’s decisions limit the amount of advice counsel is under a duty to provide. Scalia also saw no logical stopping point to a holding that requires counsel to give advice about collateral consequences of a conviction. Scalia quoted Alito’s list of collateral consequences that might be included in an expansive duty to inform, which began with civil commitment. Finally, Scalia objected to constitutionalizing an issue that might be better handled through legislation.Immigration consequences
The biggest direct impact of the Padilla decision is that criminal defense attorneys must advise their non-citizen clients about the immigration consequences of a guilty plea. In cases where the law is unclear, lawyers do not have to do significant legal research, but may simply say that a conviction may lead to the client's deportation. The Supreme Court noted that even as the Supreme Court of Kentucky denied Padilla's claim based on the collateral consequence of deportation, the Commonwealth amended it's plea bargain agreement forms to include deportation as a possible outcome.Other Collateral Consequences
Padilla may have effects on ineffectiveness claims regarding other collateral consequences. In his concurring opinion, Justice Alito lists "civil commitment, civil forfeiture, the loss of the right to vote, disqualification from public benefits, ineligibility to possess firearms, dishonorable discharge from the Armed Forces, and loss of business or professional licenses" as areas where the Court's holding in Padilla may be extended.External links
- Full opinions in Padilla v. Kentucky from the Legal Information InstituteLegal Information InstituteThe Legal Information Institute is a non-profit, public service of Cornell Law School that provides no-cost access to current American and international legal research sources online at . The organization is a pioneer in the delivery of legal information online. Founded in 1992 by Peter Martin and...
- Padilla v. Kentucky coverage by SCOTUSblogSCOTUSblogSCOTUSblog is a law blog written by lawyers and law students about the Supreme Court of the United States . The blog is sponsored by Bloomberg Law. The blog's first post occurred October 1, 2002. The blog moved to its current address on February 7, 2005. In the same year, it was featured by...