Of all the protections guaranteed by the United States Constitution, the right to counsel is arguably the most important.  As the Supreme Court famously declared in Gideon v. Wainright, a criminal defendant simply cannot be “assured a fair trial unless counsel is provided for him.”  Subsequent holdings also established that the right to counsel does not merely afford criminal defendants the euphemistic “warm body with a law degree.”  Instead, the Sixth Amendment guarantees defendants the right to “the effective assistance” of counsel as well—both during trial and in pre-trial plea negotiations.  When it comes to undocumented defendants, however, whether the Sixth Amendment provides any practical value has become a point of significant controversy.

To demonstrate prejudice arising from the ineffective assistance of counsel, Strickland v. Washington typically requires defendants to prove that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  When it comes to plea bargaining, however, the test for prejudice is slightly modified.  Generally, to withdraw a guilty plea on the basis of ineffective counsel, a defendant must demonstrate that there is “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”  In the context of immigration-related plea bargaining, however, the Supreme Court held in Padilla v. Kentucky that the applicable test is whether “a decision to reject the plea bargain would have been rational under the circumstances.”

The Supreme Court’s holding in Padilla was premised upon its conclusion that “[i]t is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the ‘mercies of incompetent counsel.’”  Despite the apparent clarity of this mandate, however, following Padilla, a nearly unanimous line of authority that includes two U.S. Circuit Courts of Appeals, seven U.S. District Courts, and trial and appellate courts in at least four states quickly concluded in some form or fashion that “Padilla applies only to those who were present in the country lawfully at the time of the plea.”  Specifically, these authorities reasoned, “a guilty plea does not increase the risk of deportation” for undocumented defendants, and as a result, “in a situation where a defendant seeks to withdraw a plea based on Padilla, and alleges lack of knowledge of the risk of deportation, prejudice cannot be established.”

Consequently, regardless of either the breadth or the magnitude of an attorney’s incompetence, a vast number of courts have concluded that undocumented defendants can never secure relief under Padilla because they are categorically incapable of satisfying Padilla’s “prejudice” prong.  As this author argues in a recent Harvard Latino Law Review article on the matter, however, these courts have grossly misapplied the relevant prejudice inquiry and have based their holding on a premise that is both factually flawed and legally misguided.  Four essential reasons support this conclusion.

First, as a practical matter, guilty pleas frequently do increase the risk of deportation for undocumented defendants.  For example, various forms of prosecutorial discretion, the Convention Against Torture, eligibility for an adjustment of status, federal executive programs like DACA and DAPA, resource constraints, and several other case-specific exemptions operate to safeguard many undocumented defendants from deportation—at least as long as they avoid disqualifying criminal convictions.  Thus, the assumption that all undocumented defendants will necessarily be deported in all cases whether they plead guilty or not is demonstrably false.

Second, the test for prejudice under Padilla is not and never has been whether a defendant “would have been deported anyway.”  Instead, the test is whether “a decision to reject the plea bargain would have been rational under the circumstances”—a standard that the Supreme Court recently reaffirmed in Lee v. United States.  With this correct standard in mind, potential scenarios in which undocumented defendants can suffer prejudice under Padilla run the gamut from situations in which a defendant is erroneously told that he will not be deported to situations in which a defendant is erroneously told that he definitely will be deported—while also applying to any number of situations in between.

For example, an undocumented defendant suffers clear legal prejudice if he pleads guilty based on erroneous advice that he definitely will not be deported.  By any metric, a defendant who accepts a guilty plea based on such affirmative misadvice—only to learn later on that the government will deport him anyway—suffers unmistakable prejudice in the form of a criminal conviction that he would not have accepted otherwise.

Critically, prejudice can also result when an attorney incompetently counsels an undocumented defendant that he definitely will be deported regardless of whether or not he pleads guilty—even though, in reality, he may not be.  In fact, receiving incompetent counsel in such a situation presents an especially heightened risk of prejudice, because the chance to avoid deportation “provides a[] . . . powerful incentive to go to trial if a plea would result in removal.”

Further, prejudice can also occur when a defendant’s attorney fails to provide any immigration advice at all.  Under such circumstances, an undocumented defendant may well believe—incorrectly—that he will not be deported if he pleads guilty, because the proffered plea bargain does not mention that deportation will be a part of his punishment.  Had the defendant been counseled that he would likely be deported whether he pleaded guilty or not, however, then he may rationally have decided to reject the plea bargain and contested the charges against him at trial instead.

Third, the contention that Padilla does not protect undocumented defendants frustrates the underlying purpose of the right to counsel itself: to prevent inaccurate convictions.  Given the severe consequences of deportation, there is strong reason to be concerned that defendants who are given the erroneous impression that they will be able to remain in the United States if they plead guilty will do so on that basis alone—rather than pleading guilty on the basis of their actual guilt.  Consequently, by carving undocumented defendants out of the protection afforded by Padilla, courts dangerously increase the risk of wrongful convictions and erode public confidence in the accuracy of guilty pleas.

Fourth and finally, the Padilla Court held without equivocation that: “It is our responsibility under the Constitution to ensure that no criminal defendant — whether a citizen or not — is left to the ‘mercies of incompetent counsel.’”  By its terms, this holding expressly includes undocumented defendants, and if the Supreme Court had intended to restrict its reach to legal permanent residents alone, then one can safely assume that it would have done so.  Thus, unless and until the Supreme Court holds otherwise, lower courts should take the Supreme Court at its word and faithfully apply Padilla as instructed.

Fortunately, despite the initial wave of authority that concluded that undocumented defendants can never demonstrate prejudice under Padilla, there is evidence that the tide is beginning to shift.  In a recent opinion issued by the Iowa Supreme Court, for example, the court explained that:

The State essentially claims unauthorized aliens cannot be prejudiced under a Sixth Amendment challenge because they are already subject to removal. We reject this claim for several reasons. There is a vast difference for an unauthorized alien between being generally subject to removal and being convicted of a crime that subjects an unauthorized alien to automatic, mandatory, and irreversible removal. Additionally, removal is not a foregone conclusion for every unauthorized alien. Immigration policy is subject to change, as is enforcement. Furthermore, unauthorized aliens may seek lawful permanent resident status under the law if they meet certain qualifications. 8 U.S.C. § 1229b(b)(1)(A)–(D). A plea of guilty to certain offenses can foreclose this process. See id. § 1229b(b)(1)(C). Finally, an unauthorized alien may rationally choose to reject a plea deal for the same reasons a U.S. citizen might. See Daniel A. Horwitz, Actually, Padilla Does Apply to Undocumented Defendants, 19 Harv. Latino L. Rev. 1, 15–16 (2016).

For the sake of the right to counsel—and to maintain the integrity of the criminal process—let’s hope that other courts follow suit.

Daniel Horwitz is a constitutional lawyer in Nashville, Tennessee.  Reach him at www.scotblog.org, @scot_blog, or by email at daniel.a.horwitz@gmail.com.