Academic highlight: Looking at Padilla and its impact
on Nov 2, 2012 at 10:20 am
Although scholars and practitioners have long been aware of the intersections between criminal and immigration law, the Supreme Court inextricably linked the two in Padilla v. Kentucky when it concluded that defense counsel’s failure to advise a criminal defendant that pleading guilty would likely lead to his deportation violated the defendant’s Sixth Amendment right to effective counsel. Ever since the Court issued its decision in Padilla in 2010, legal scholars have been busy addressing its impact, including whether it applies retroactively — a question before the Court this Term in Chaidez v. United States.
Professor Nancy King, together with Gray Proctor, has authored a practical guide to post-Padilla litigation. Their article, Post Padilla: Padilla’s Puzzles for Review in State and Federal Courts, addresses a wide range of nuts-and-bolts questions left open by the decision, such as what constitutes constitutionally deficient advice, the effect of procedural default, and whether Padilla applies retroactively. It is an excellent primer for practitioners who want to keep abreast of the consequences of that decision for their clients.
Also worth mention is Howard Law School’s symposium, Collateral Consequences: Who Really Pays the Price for “Criminal Justice”?, in which law professors and practitioners discussed the ramifications of Padilla for the treatment of collateral consequences of criminal convictions. As Professor Gabriel (“Jack”) Chin pointed out in his contribution, the “inescapable logic of Padilla is that counsel’s duty will extend to warning about other serious collateral consequences [of pleading guilty] as well.” Chin notes that this will be a difficult task for overburdened defense attorneys who may not be experts in the intricacies in specialized and complex areas of law such as immigration. Additional contributors include Jenny Roberts, Margaret Colgate Love, and Yolanda Vazquez.
The Public Law Review’s symposium, entitled A New Era for Plea Bargaining and Sentencing? The Aftermath of Padilla v. Kentucky, examined similar questions. In his contribution, Professor Stephanos Bibas, who served as co-counsel in Padilla, argues that plea bargaining is a market in which criminal defendants are ill-equipped to participate. Bibas observes that the Padilla decision “has gone a great way toward rejecting the simplistic assumption that defendants are fully informed rational actors,” although he also recognizes that Padilla cannot solve all the problems that prevent defendants from making good choices at plea bargaining. In the same symposium issue, Professor Stephen Legomsky argues that Padilla has implications for the right to counsel at deportation proceedings.
For all those interested in Padilla, Chaidez, and their aftermath, these articles provide useful insights into what the future holds.
[Disclosure: The law firm of Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to the petitioner in Chaidez. However, the author of this post is not affiliated with the law firm.]