By Sam Singer
For most of us, the Sixth Amendment represents the familiar proposition that we have a right to a competent criminal defense. In its plainest form, we picture a lawyer who will fight vigorously to keep us out of prison, and if he can’t, then at least to make our stay as short and comfortable as possible. We don’t ask more of the Constitution because we don’t need more; generally, the legal consequences of criminal prosecution end with an orange jumpsuit.
Not so for Jose Padilla. When he pleaded guilty to a drug charge, his prison sentence was a secondary concern. More important for Padilla, a Vietnam veteran and lawful U.S. resident of forty years, was his lawyer’s assurance that pleading guilty would not subject him to deportation. When it turned out his lawyer was wrong, Padilla sought relief in the Kentucky courts, arguing that he was deprived of his Sixth Amendment right to counsel. In denying his claim, the Kentucky Supreme Court held that the Sixth Amendment does not contemplate the “collateral consequences” of a conviction. Having examined the direct consequences of his guilty plea, the court explained, Padilla’s lawyer had no obligation to warn him that pleading guilty would automatically trigger his removal.
On Tuesday, Padilla asked the Supreme Court to reject Kentucky’s narrow interpretation of the Sixth Amendment’s right to counsel. He contends that the right is not fixed in scope, but that it expands and contracts with the objectives of the client. As a non-citizen, Padilla wanted reliable advice about the immigration consequences of conviction before entering a guilty plea. Had he received it, he would have bargained for a conviction that would not trigger deportation. Failing that, he would have gone to trial, where the government had the burden of proof and he had a fighting chance.
Appearing on behalf of Kentucky, Robert Long reminded the Court that the Sixth Amendment is concerned with a fair determination of guilt, not with the legal consequences that flow from it. In his view, the Sixth Amendment inquiry ends when the Court is satisfied that the defendant understood his core procedural rights. Long contends that the Court can’t expand the doctrine, even if only to accommodate non-citizens, without inviting questions about its limits.
As if to prove the point, the justices spent the better part of the day grilling Padilla’s lawyer (his lawyer on appeal, not the clown that landed him here) about the limits of his proposed standard. Justice Ginsburg wanted to know whether defense lawyers would have to warn clients about forfeiting civil rights like voting and driving. Justice Alito wondered whether a conviction could be set aside because the defendant was not aware that it would increase his exposure to tort liability. Justice Scalia couldn’t locate a limiting principle that sets apart deportation from losing custody of a child.
Padilla offers a safe alternative for those justices concerned that the slope of the collateral consequences path is a slippery one. First, Padilla contends that the Court could do right by simply adding “immigration status” to the narrow list of issues that a defense lawyer must consider when advising criminal defendants. This option has the practical appeal of avoiding an open-ended ruling that some fear would invite a flurry of post-conviction challenges.
Second, Padilla stresses the distinction between bad advice and no advice at all. Had his lawyer simply overlooked the immigration consequences, the Court would have to determine whether Padilla was entitled to the information. But because Padilla raised the question and, despite being spectacularly ill-equipped to do so, his lawyer fielded it, the Court could set aside the conviction without reaching the broader question. For a Court that prides itself on minimalism, this will be tempting escape hatch.
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Sam Singer is the Beachwood’s legal correspondent. He welcomes your comments.
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Previously by Sam Singer:
* Is TARP legal? Court to decide on laugh test.
* Taking Government Out Of The Marriage Business. Separating church and state.
* Chicago’s Disorderly Conduct. Dissent allowed even in Daleyland
* Why Google Will Win. Newspapers are on the wrong side of the digital revolution.
* Is Blago A Flight Risk? We asked; a judge said yes.
* Obama’s Torture Test. Politically calculating.
* Replacing Souter. Signs point to Kagan.
* Going to Pot. The states vs. the feds.
* The Sotomayor Show. A guide for viewers.
* Chicago’s Still Valid Gun Ban. Chicago vs. D.C.
* The Gay Rights Gamble. What happened in California may no longer stay there.
* Legal Fiction. When judges go noir.
* Obama’s Justice. The president’s curious habit.
* Settling With The City. Backwards by even Chicago standards.
* The Legality of Health Insurance Mandates. The consumer who doesn’t pay for a commodity is every bit as active as one who does.
Posted on October 16, 2009