Padilla v. Commonwealth of Kentucky: Does Misadvice Constitute Ineffective Assistance? (Argument Preview)
On Tuesday, October 13, the Court will hear arguments in No. 08-651, Padilla v. Commonwealth of Kentucky. At issue in the case is whether a criminal defendant's guilty plea can be set aside because his defense counsel affirmatively misadvised him with regard to the deportation consequences of the plea, and whether such misadvice constitutes ineffective assistance of counsel under the Sixth Amendment.
Stanford student David Owens has previously written on the background and certiorari"‘stage briefs in the case at SCOTUSwiki; you can read his discussion here.
In his brief on the merits, Padilla argues that the Court's decision should be governed by the two-pronged test outlined in Strickland v. Washington, which establishes a two-pronged test for assessing Sixth Amendment ineffective-assistance claims: (1) did counsel's performance "f[a]ll below an objective standard of reasonableness"; and, if so, (2) was the defendant prejudiced by his counsel's deficient performance. The first prong's "objective standard of reasonableness," Padilla argues, "turns on whether counsel was professionally competent, not whether he was right," and can therefore be governed by "prevailing professional norms" such as ABA standards. And his "counsel's objectively unreasonable performance prejudiced him," he explains, because it resulted in his making a guilty plea that he would not otherwise have made.
Although the Kentucky Supreme Court reasoned that Strickland did not apply because Padilla's deportation constituted only a "collateral consequence" of his guilty plea, Padilla argues that the "collateral consequences" doctrine applies only to the obligations of the court accepting the guilty plea, and not to the duties of defense counsel. In other words, even though a court has no obligation to advise the defendant of the consequences of his plea, the Court's opinion in Hill v. Lockhart "declined to import that doctrine into the Sixth Amendment to exempt defense counsel from any" duty to inform defendants of necessary information regarding their eligibility for parole.
Padilla argues in the alternative that, in any event, deportation should not be characterized as a mere "collateral consequence" of a guilty plea because "[f]or many immigrant defendants, the deportation consequences of conviction will matter much more than the criminal punishment." And even if the Court does characterize his deportation as a "collateral consequence" of his guilty plea, its decision in Hill v. Lockhart would still require it to evaluate his claim under Strickland. He concludes by distinguishing his case from others implicating the "collateral consequences" doctrine by asserting that his attorney's affirmative misadvice regarding the deportation consequences of a guilty plea (as opposed to silence on the issue) mandates a Sixth-Amendment remedy.
In its brief on the merits, Kentucky counters that federal circuits have consistently held that trial courts have a duty only to ensure a defendant's understanding of the "direct" consequences of his guilty plea. While Padilla may have misunderstood the "collateral" matter of his deportation, the Commonwealth argues, this does not affect his constitutional ability to make a voluntary guilty plea, as it "does not affect that defendant's understanding of the right to trial by jury, right of confrontation, the protection against self-incrimination, or any other right waived when pleading guilty." Citing Brady v. United States and Boykin v. Alabama, the Commonwealth argues that a defendant's plea is considered voluntary as long as he understands the "direct consequences of conviction." Because the trial court has no control over deportation proceedings, the Commonwealth continues, the potential of deportation must be viewed as collateral to the criminal proceedings against Padilla. Compelling defense counsel to advise defendants of all collateral consequences to conviction "would be overly burdensome and wholly impractical" because such an obligation would require defense counsel to address myriad potential outcomes, ranging from custody restrictions to an increased risk of contracting infectious disease. Further, Padilla's distinction between "affirmative misadvice" and "failure to advise" is arbitrarily drawn, because the consequence in question is a "collateral consequence" in either case, and thus outside the scope of constitutionally mandated attorney representation.
The amicus brief filed by the United States in support of affirmance indicates that, because the majority of federal criminal prosecutions are resolved through guilty pleas, the outcome of the case will have direct implications for review of federal convictions. The United States agrees with Padilla that the Kentucky Supreme Court erred in holding that misadvice with regard to immigration consequences does not merit a Sixth Amendment analysis: although defense attorneys are under no obligation to advise defendants about the immigration consequences of a guilty plea, the United States asserts in its brief, an attorney who does provide such advice "has a duty to avoid doing so incompetently." Because the decision to enter a guilty plea belongs to the defendant alone, and because incompetent advice (with regard to both direct and collateral consequences) might undermine this decision, affirmative misadvice with regard to immigration consequences may thus constitute a Sixth Amendment violation.
However, the United States continues, the Strickland analysis requires both deficient performance and prejudice, and Padilla cannot meet the second requirement. Because any defendant faced with deportation can allege, after the fact, that his defense counsel's advice prejudiced their plea decision, the U.S. argues, courts must apply Strickland's prejudice prong "rigorously," using an objective test "“ established by the Court in Roe v. Flores-Ortega (2000) — that finds prejudice only when "a rational defendant [would have] insist[ed] on going to trial." Because "the evidence of guilt was overwhelming" in Padilla's case, and because going to trial might have exposed Padilla to a longer sentence than he would have received after pleading guilty, Padilla could not "rationally" have opted to forgo a guilty plea and proceed to trial.
In his reply, Padilla contends that Kentucky's reliance on the "collateral consequences" doctrine constitutes a per se rule which contravenes established professional standards. Distinguishing between the Due Process Clause and the Sixth Amendment, Padilla emphasizes that one refers to the duties of courts while the other pertains to the duty of defense counsel. Unlike the court, which need only advise a defendant of what consequences it may impose, defense counsel is obligated to "investigat[e] the relevant factors and advis[e] the defendant whether to plead guilty." Indeed, Padilla notes, the United States confirms this distinction in its amicus brief supporting affirmance. But while the United States has argued in its brief that "a lawyer satisfies constitutional standards by partial investigation and disclosure" of the consequences of a guilty plea, Padilla contends that this argument has no constitutional foundation and that the imposition of such a rule is irreconcilable with Hill and Strickland.
The position of the Commonwealth and of the United States, Padilla argues, rests on the false premise that counsel must only advise a defendant on consequences relating to criminal liability and punishment. Pointing to the Court's decision in Williams v. Kaiser, Padilla indicates that counsel is obligated to shield a defendant from becoming the "victim of overzealous prosecutors, of the law's complexity, or of his own ignorance or bewilderment." Finally, relying on amicus curiae briefs filed by the ABA and the National Association of Criminal Defense Lawyers, Padilla disputes the Commonwealth's contention that a requirement to inform defendants of collateral consequences will overwhelm defense counsel, observing that comprehensive resources exist to enable attorneys to investigate and mitigate immigration consequences for their clients, "and competent lawyers are doing so." And although respondents have argued that a ruling in Padilla's favor would threaten to overturn countless criminal convictions, Padilla counters in his brief that the specificity of the Strickland test would render the majority of guilty pleas legitimate.