In a decision published yesterday, the U.S. Supreme Court held that criminal defense counsel must inform a client whether a plea carries a risk of deportation. Padilla v. Kentucky, 559 U.S. __, No. 08-651, slip op. (March 31, 2010). Justice Stevens delivered the majority opinion, which Kennedy, Ginsburg, Breyer, and Sotomayor joined. Justice Alito concurred in the judgment, with whom Chief Justice Roberts joined. Justice Scalia dissented, joined by Thomas.
José Padilla, a 40-year lawful permanent resident, pled guilty to transporting a large amount of marijuana in Kentucky. Padilla, No. 08-651, slip op. at 1. He claims that his defense attorney not only failed to inform him that he would be deported as a result of his conviction, “but also told him that he ‘did not have to worry about immigration status since he had been in the country so long.’” Padilla, No. 08-651, slip op. at 1 (quoting Padilla v. Kentucky, 253 S.W. 3d 482, 483 (Ky. 2008)). As the Court explained, “Padilla relied on his counsel’s erroneous advice when he pleaded guilty to the drug charges that made his deportation virtually mandatory. He alleges that he would have insisted on going to trial if he had not received incorrect advice from his attorney.” Padilla, No. 08-651, slip op. at 1.
INA § 237(a)(2)(B)(i) clearly rendered Padilla deportable as a result of this conviction for “a violation of…any law or regulation of a State, the United States or a foreign country relating to a controlled substance…” The only exception to this provision is for “a single offense involving possession for one’s own use of 30 grams or less of marijuana.” INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i). Apparently Padilla’s criminal defense attorney was unaware of this deportation category.
The Supreme Court was asked to determine whether the incorrect advice that Padilla received from his defense attorney violated his Sixth Amendment right to effective assistance of counsel. Ultimately, the Court held that the test for ineffective assistance of counsel that it announced in Strickland v. Washington, 466 U.S. 668 (1984), which is the standard test for examining this Sixth Amendment guarantee, does apply. Padilla, No. 08-651, slip op. at 9.
Strickland requires a two-pronged analysis. First, a court must “determine whether counsel’s representation ‘fell below an objective standard of reasonableness.’” Padilla, No. 08-651, slip op. at 9 (quoting Strickland, 466 U.S. at 688). If the attorney’s representation did fall below an objective standard of reasonableness, then a court must determine whether the attorney’s unreasonable representation actually prejudiced the defendant.
Though the Padilla Court determined that Padilla’s defense attorney failed to meet the objective standard of reasonableness—the first Strickland prong—the Court did not decide whether that unreasonable performance actually prejudiced Padilla. Padilla, No. 08-651, slip op. at 17. As such, the Court did not decide whether Padilla’s right to effective assistance of counsel was violated; instead, it remanded his case to determine whether Padilla was prejudiced by his defense attorney’s unreasonable representation. Padilla, No. 08-651, slip op. at 17-18.
The controlling majority’s analysis is nonetheless of enormous significance. The five justices who endorsed Justice Stevens’ decision set forth an analytical framework that will guide many thousands of non-citizens who find themselves in situations similar to Padilla. In his decision, Stevens first recounted more than a century of immigration law in an effort to show that immigration law has changed from an area of law where judges once had a lot of discretion to deport a particular individual or not to an area where today judges are often deprived of any discretion. Padilla, No. 08-651, slip op. at 3-6. “In 1996,” Stevens wrote, “Congress also eliminated the Attorney General’s authority to grant discretionary relief from deportation, an authority that had been exercised to prevent the deportation of over 10,000 noncitizens during the 5-year period prior to 1996.” Padilla, No. 08-651, slip op. at 6 (internal citations omitted). Such is the case with Padilla.
The lack of discretion is no small change, Stevens added. “These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction.” Padilla, No. 08-651, slip op. at 6. Then, in a passage that foreshadowed the Court’s holding, Stevens described deportation as “an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” Padilla, No. 08-651, slip op. at 6.
By placing deportation squarely within the “integral” components of the plea process, Stevens positioned himself to reject the distinction between “direct” and “collateral” consequences of a plea that federal and state courts, including Kentucky’s Supreme Court in Padilla’s case, have used to deny allegations that a criminal defense attorney’s failure to advise a non-citizen about potential immigration consequences of a plea violates the Sixth Amendment right to effective assistance of counsel. Padilla, No. 08-651, slip op. at 7 & n.9 (citing decisions of six federal circuits and four state courts). Indeed, a few pages later Stevens clearly explained, “Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation.” Padilla, No. 08-651, slip op. at 8-9.
By acknowledging the close tie between the criminal process and deportation as well as the importance of immigration consequences to many non-citizen criminal defendants and by rejecting the direct/collateral consequences distinction, Stevens and the justices who joined his analysis were ready to announce that Strickland’s two-pronged framework applies in the context of deportation consequences that result from a plea. And so they did: “Strickland applies to Padilla’s claim.” Padilla, No. 08-651, slip op. at 9.
After determining that Strickland applies, Stevens then had to address the first prong of the Strickland test—whether Padilla’s defense attorney met an objective standard of reasonable representation. Padilla, No. 08-651, slip op. at 9. “‘The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.’” Padilla, No. 08-651, slip op. at 9 (quoting Strickland, 466 U.S. at 688). To determine this, Stevens acknowledged, as the Supreme Court has done many times before, the helpful role that professional bar associations play in identifying what constitutes reasonable representation. Padilla, No. 08-651, slip op. at 9.
Stevens then surveyed a number of leading practice guides, treatises, and manuals produced by highly respected bar associations and government agencies. Padilla, No. 08-651, slip op. at 9-10. “The weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.” Padilla, No. 08-651, slip op. at 9.
The justices for whom Stevens wrote had no trouble finding that Padilla’s defense attorney failed to meet an objective standard of reasonable performance: “This is not a hard case in which to find deficiency: The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect.” Padilla, No. 08-651, slip op. at 11. When deportation will clearly result from entry of a particular plea, “the defense attorney’s duty to give correct advice is equally clear.” Padilla, No. 08-651, slip op. at 12. Since Padilla’s defense attorney failed to do this, the first prong of the Strickland test was satisfied.
What happens, though, in situations where it is far less clear whether deportation will result from entry of a particular conviction? After a rather straightforward beginning, here Stevens moved into somewhat murkier territory. “The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward…a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Padilla, No. 08-651, slip op. at 12.
Two standards seem to emerge: one for situations where deportation is obvious and another where deportation is more questionable. Unfortunately, Stevens doesn’t provide much of a guide for distinguishing situations where deportation is “succinct and straightforward” from those that are not. The only guide the decision gives is that it places Padilla’s situation within the “succinct and straightforward” pole. Justice Alito, in his concurrence, argues that “[t]his vague, halfway test will lead to much confusion and needless litigation.” Padilla, No. 08-651, slip op. at 1 (Alito, J., concurring in judgment).
Only time will tell, but I would not be surprised if Alito proves to be correct. As he goes on to explain, “providing advice on whether a conviction for a particular offense will make an alien removable is often quite complex….As has been widely acknowledged, determining whether a particular crime is an ‘aggravated felony’ or a ‘crime involving moral turpitude’ is not an easy task.” Padilla, No. 08-651, slip op. at 4 (Alito, J., concurring in judgment). Alito is correct insofar as determining whether a particular conviction constitutes an aggravated felony or CIMT is often anything but straightforward.
Despite this bit of uncertainty in the controlling majority’s analysis, this decision, I think, cannot be understated. As criminal law and immigration law have converged over the last twenty-five years, the importance of considering potential immigration consequences at the earliest stages of the criminal process has become critical. It is in those early moments that a non-citizen’s “right to stay and live and work in this land of freedom,” as the Supreme Court wrote in Bridges v. Wixon, 326 U.S. 135 (1945), is so often determined. After Padilla, criminal defense attorneys would be wise to carefully explore the potential immigration consequences of a possible conviction before advising a client about a plea.