In two cases released the same day, the Wisconsin Supreme Court made it much more difficult for migrants to demand the effective assistance of counsel that the Sixth Amendment entitles them and all defendants in criminal prosecutions to receive. See Padilla v. Kentucky, 559 U.S. 356 (2010). In the process, the court revealed serious misunderstandings of constitutional law and a subtle but perceptible inclination toward rightwing legal claims credited by federal judge Andrew Hanen who presided over major attacks against President Obama’s immigration executive actions.
Both decisions begin fairly benignly. In both, the court notes that some criminal charges will clearly result in deportability. Other times the impact of a particular conviction on a defendant’s immigration status is not clear. Building off the Padilla Court’s articulation of a two-tiered advice obligation, the Wisconsin decisions note that the specificity of the advice an attorney is required to provide turns on just how clear it is that immigration consequences will result from conviction.
In one case, State v. Shata, 2013AP1437-CR, slip op. (WI July 9, 2015), this was an easy call. Prosecutors and the defendant there agreed that a conviction made Shata deportable. Id. at ¶ 57.
Things were much more complicated in the other case, State v. Ortiz-Mondragon, No. 2013AP2435-CR, slip op. (WI July 9, 2015). There the question of whether a conviction would clearly result in deportability was at the heart of the court’s inquiry. The defendant claimed that it should have been clear to his plea-stage counsel that pleading to substantial battery as an act of domestic abuse was a crime involving moral turpitude. Id. at ¶ 3. Prosecutors disagreed. Id. at ¶ 4. After a lengthy discussion of the crime involving moral turpitude basis of removal, the Wisconsin justices concluded that “relevant immigration law is far from succinct, clear, and explicit as to what constitutes a crime involving moral turpitude.” As such, the court sided with prosecutors.
It’s hard to disagree with the court’s assessment of immigration law. Though the “crime involving moral turpitude” phrase has been part of immigration law since 1891, Congress has never bothered to define it. The BIA and federal courts have pushed in different directions about what kind of crime rises to the level of being inherently morally turpitudinous. In the lead-up to enactment of the Immigration Act of 1917, one member of Congress said it well when he complained, “No one can really say what is meant by saying a crime involving moral turpitude.” Jordan v. DeGeorge, 341 U.S. 223, 233-34 (1951) (Jackson, J., dissenting). More recently, the Ninth Circuit wrote that the phrase “moral turpitude” contains “inherent ambiguity.” Nuñez v Holder, 594 F.3d 1124, 1130 (9th Cir. 2010). The First Circuit added that this “is one of the most ambiguous in the long list of ambiguous legal phrases.” Kim v. Gonzales, 468 F.3d 58, 62 (1st Cir. 2006). Examining this hard to navigate legal landscape, scholar (and my former professor) Mary Holper argues that the crime involving moral turpitude concept ought to be declared unconstitutionally vague. Mary Holper, Deportation for a Sin: Why Moral Turpitude is Void for Vagueness, 90 Nebraska Law Review 647 (2012).
Until Holper’s vision becomes reality, though, lawyers, their clients, and judges are forced to continue navigating the crime involving moral turpitude morass. The practical effect of concluding that immigration law is not clear about what constitutes a crime involving moral turpitude is that Ortiz-Mondragon’s defense attorney was required to simply advise him that the criminal charges he faced “‘may carry a risk of adverse immigration consequences’.” Id. at ¶ 51 (quoting Padilla, 559 U.S. at 369).
This is a very low bar and one that I’ve criticized rather harshly in the past. Playing on the name of the Supreme Court case that sets out the modern test for Sixth Amendment ineffective assistance of counsel claims, I’ve dubbed the Padilla Court’s low bar as “Strickland-lite.” As I wrote in Strickland-Lite: Padilla’s Two-Tiered Duty for Noncitizens,
the “Strickland-lite” duty to investigate immigration consequences allows an attorney to cease investigation for reasons completely unrelated to a calculation that further investigation would yield the defendant no additional benefit. Padilla sanctions ending investigation of immigration consequences upon realizing that the relevant law is complex, regardless of whether further investigation would be beneficial. Nowhere else in the duty-to-investigate case law can one find such an end point.
72 Maryland Law Review 844, 852 (2013).
Both Wisconsin cases illustrate the Strickland-lite duty in action and highlight the peril of letting defense attorneys get away with so much. In Shata, the court upholds the plea attorney’s work despite there being no question that the attorney didn’t even read the relevant immigration statutes. Shata, 2013AP1437-CR, slip op. at ¶ 7. The majority is more circumspect in Ortiz-Mondragon, but the dissenting opinion by Justice Bradley makes it clear that the attorney there didn’t read the statute either. No. 2013AP2435-CR, slip op. at ¶ 71.
This is shameful behavior. Before advising a client about life-changing decisions, the absolute very least that any attorney should do is read the statute, even when they think they remember what it says. To do anything else is to shirk one’s responsibility to act as a zealous advocate in a legal proceeding. That lamentable conduct, however, is perfectly acceptable in Wisconsin.
Though that much is problematic in both cases, I find Shata more troubling because there the defense attorney was ostensibly held to the higher level of advice contemplated by the Padilla Court: because, as the parties agreed, deportability would clearly result upon conviction, Shata’s attorney should have clearly told him as much. This requirement, the court explained, doesn’t mean that the attorney was required to say that conviction “would absolutely result in deportation.” Shata, 2013AP1437-CR, slip op. at ¶ 5. Instead, advising that there was a “strong chance” of deportation was sufficient to meet the constitutional obligation to provide advice about the immigration consequences of conviction. Id.
I don’t have any qualms with that. As the Padilla Court properly recognized, no attorney can ever predict with absolute certainty what will happen after conviction. The Wisconsin court, however, misunderstands why the Padilla Court reached this conclusion. In the eyes of the U.S. Supreme Court justices who joined Justice Stevens’ majority opinion (as well as Justices Alito and Roberts who concurred) in Padilla, the reason is that immigration law is too complex for anyone to play clairvoyant. The Wisconsin justices, however, think the Padilla Court reached this conclusion because the basic existence of prosecutorial discretion always leaves room, no matter how improbable, that the federal government wouldn’t initiate removal proceedings. Shata, 2013AP1437-CR, slip op. at ¶¶ 59-62. If that were the measure the Padilla Court favored almost no migrant could ever show that she was presumptively likely to face deportation.
It would be bad enough if the court reached this conclusion based on poor analysis of the Padilla decision. The actual reason that leads the court to this conclusion ought to embarrass it. Citing the ongoing legal challenges against President Obama’s attempts to implement DAPA and expand DACA, the court explained “prosecutorial discretion and the current administration’s immigration policies provide possible avenues for deportable aliens to avoid deportation.” Id. at ¶ 59 & n.16. This is an intellectually cheap rationale more heavily rooted in the kind of political gamesmanship covered in daily news than in a sophisticated analysis of law enforcement practices that I expect of judges. First, Shata’s conviction for possession with intent to deliver marijuana makes him a top immigration law enforcement priority for the Obama Administration because it’s a felony. See Wis. Stat. § 961.41(1m). Second, the Padilla decision doesn’t at all hinge on prosecutorial discretion; that’s simply not a concern for the U.S. Supreme Court. For the Wisconsin justices too ascribe that reasoning to their federal colleagues is as unfortunate as it is remarkable.
The Shata opinion’s problems don’t end there. The Wisconsin Supreme Court’s analysis takes a turn for the worse when it expands on the obligation imposed on the defense attorney. According to the Shata court, “The Padilla Court suggested that an attorney would give reasonably competent advice [satisfying the Sixth Amendment] by providing a warning similar to the one that Wis. Stat. § 971.08 requires a circuit court to give: that an alien’s conviction may result in deportation.” Shata, 2013AP1437-CR, slip op. at ¶ 65. In effect, the court equates a defense attorney’s duty to advocate on behalf of a criminal defendant with the duty that a judge has to ensure that any plea entered by a defendant is done knowingly and intelligently. See id. at ¶ 77.
The two standards are simply not equivalent. The attorney’s obligation is rooted in the Sixth Amendment’s truth-seeking function. Only through the contestation of adversaries, the theory that underpins the right-to-counsel goes, can we learn the truth of a defendant’s guilt. Consequently, defense attorneys are expected to act, in the words of legal scholar James Tomkovicz, as “an offensive ‘sword’ and a defensive ‘shield’ for the defendant.” James T. Tomkovicz, The Right to the Assistance of Counsel: A Reference Guide to the United States Constitution 49 (2002).
In contrast, a judge presiding over a criminal prosecution is obligated to ensure only that the defense attorney has alerted a defendant to the consequences of conviction. As I explain in my forthcoming book, Crimmigration Law:
While defendants certainly benefit from having the court flag immigration issues as a concern, no one seriously advocates that judges should take the place of attorneys in strategically guiding defendants through the criminal process. Judges do not have the time to do this. Even if judicial resources were not limited, in an adversarial system of justice judges should not take the role of one party’s advocate—effectively what it means to allow them to step in to correct a defendant’s constitutionally deficient advice. Explaining this reasoning succinctly, the Fifth Circuit wrote,
It is counsel’s duty, not the court’s, to warn of certain immigration consequences, and counsel’s failure cannot be saved by a plea colloquy. Thus, it is irrelevant that the magistrate judge asked Urias whether she understood that there might be immigration consequences and that she and her attorney had discussed the possible adverse immigration consequences of pleading guilty.
Not only are the judge’s responsibilities distinct from those of the defense attorney, they are different in substance as well. The judge, as the Fifth Circuit pointed out, is not obligated to advise a defendant facing almost certain removal that removal will be presumptively mandatory upon conviction, as Padilla makes clear the Sixth Amendment requires of criminal defense attorneys. Instead, as the Florida Supreme Court noted in holding that a judicial admonishment cannot cure an attorney’s prejudice, the burden imposed on judges is lower than that imposed on criminal defense attorneys. Simply raising the issue of potential immigration consequences is enough to meet the court’s obligation that a plea is entered knowingly and voluntarily. This is a far cry from the zealous advocacy that the Sixth Amendment requires of criminal defense attorneys. Furthermore, the plea colloquy between a judge and defendant tends to be fairly pro forma. It is, as one commentator wrote, “largely ceremonial and takes place directly before the defendant enters her plea, after she has made that choice.” There is little real opportunity for actual decisionmaking after the plea colloquy. By constitutional design and courtroom practice, therefore, the discussion between judge and defendant is not intended to and does not substitute for the strategic counsel required of a defense attorney.
The Wisconsin Supreme Court seems blind to this critical constitutional distinction. It instead seems to think that attorneys should do no more than provide the kind of generic, broadly worded admonishment that courts regularly do. It couldn’t be more incorrect. Sadly, its error enables sloppy criminal representation that hurts defendants and tarnishes the legitimacy of criminal proceedings.
 United States v. Urias-Marrufo, 744 F.3d 361, 369 (5th Cir. 2014).
 See Hernandez v. State, 124 So.3d 757, 759 (Fla. 2012).
 Danielle M. Lang, Note, Padilla v. Kentucky: The Effect of Plea Colloquy Warnings on Defendants Ability to Bring Successful Padilla Claims, 121 Yale L.J. 944, 985 (2012).
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