Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction
The Champion, May 2010
Arizona Legal Studies Discussion Paper No. 10-16
7 Pages Posted: 16 Apr 2010 Last revised: 13 Jul 2011
See all articles by Margaret Colgate Love
Margaret Colgate Love
Law Office of Margaret Love
Gabriel Jackson Chin
University of California, Davis - School of Law
Date Written: April 16, 2010
In Padilla v. Kentucky, 559 U.S. (March 31, 2010), the Supreme Court broke new ground in holding in a 7-2 decision that a criminal defense lawyer had failed to provide his noncitizen client effective assistance of counsel when he did not tell him that he was almost certain to be deported if he pled guilty. It is the first time that the Court has applied the 1984 Strickland v. Washington standard to a lawyer's failure to advise the client about a "collateral" consequence of conviction – something other than imprisonment, fine, probation and the like, that the court imposes at sentencing. While Padilla's implications for cases involving deportation are clear, it may also require lawyers to consider many other legal implications of the plea.
The Padilla decision clearly governs cases where a noncitizen is threatened with deportation on the basis of conviction. But if that were all, it would not "mark a major upheaval in Sixth Amendment law," as the concurring Justices warned. While Padilla's effects will be felt most immediately in the tens of thousands of criminal cases involving noncitizen defendants, defense lawyers must now concern themselves more generally with the broader legal effects of a criminal conviction on their clients. The systemic impact of this new obligation cannot be underestimated. Padilla may turn out to be the most important right to counsel case since Gideon, and the "Padilla advisory" may become as familiar a fixture of a criminal case as the Miranda warning.
Keywords: Collateral Consequences, padilla, deportation, sex offender registration, Sixth Amendment, Right To Counsel, Strickland
Colgate Love, Margaret and Chin, Gabriel Jackson, Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction (April 16, 2010). The Champion, May 2010, Arizona Legal Studies Discussion Paper No. 10-16, Available at SSRN: https://ssrn.com/abstract=1591264
Margaret Colgate Love (Contact Author)
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