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Task Force Probes Defense Lawyers' Role After Padilla

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An American Bar Association task force has plunged into the work of studying the evolving role of criminal defense lawyers in the wake of the U.S. Supreme Court’s landmark 2010 decision in Padilla v. Kentucky.

The panel has taken on the ambitious task of examining the impact of Padilla on criminal pleas with potential deportation consequences for defendants. The panel will also engage in a broader debate about the role of defense lawyers in advising clients of a range of collateral consequences, in areas such as employment, housing and child custody.

Padilla has really highlighted the need of criminal practitioners to look at the client in a different way,” says Justine Luongo, a supervising attorney for the Legal Aid Society of New York City and chair of the ABA Criminal Justice Section Task Force on Comprehensive Representation. “It is raising the bar—or the floor, really—of our representation.”

The Supreme Court ruled that a criminal defense lawyer had failed to provide effective assistance to a Honduran native who had lived in the United States more than 40 years. The court said the lawyer failed to warn the non-U.S. citizen that his plea agreement on drug-distribution charges would likely lead to his deportation.

“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,” Justice John Paul Stevens wrote in an opinion signed by four other justices in the 7-2 decision in Padilla. “To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our long-standing Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.”

Stevens, who retired last year, noted that the high court had never distinguished between “collateral” and “direct” consequences under the “reasonable professional assistance” required by the court since 1984 in Strickland v. Washington. Because deportation was a particularly severe “penalty,” Stevens said, the court did not need to decide whether the distinction between collateral and direct consequences was appropriate.


The decision prompted an immediate flurry of activity among legal organizations that wanted to make sure defense lawyers realized that it was now a requirement of the Sixth Amendment that their clients be informed when deportation could result from a plea.

The most far-reaching question that remains is whether Padilla covers collateral consequences outside the deportation context.

Justice Samuel A. Alito Jr., who concurred in the outcome in Padilla, said in an opinion joined by Chief Justice John G. Roberts Jr. that “this court has never held that a criminal defense attorney’s Sixth Amendment duties extend to providing advice” about such areas as civil commitment, the loss of voting rights, disqualification from public benefits, ineligibility to possess firearms and other consequences.

“Criminal defense attorneys have experience regarding the conduct of criminal proceedings,” Alito wrote. “They are not expected to possess —and very often do not possess—expertise in other areas of the law.”

Justice Antonin Scalia, in a dissent joined by Justice Clarence Thomas, said there was no basis “in text or in principle to extend the constitutionally required advice regarding guilty pleas beyond those matters germane to the criminal prosecution at hand.”

But those warnings have not kept defendants from raising Padilla-related claims in cases involving other collateral consequences, and lower courts have begun to address those claims.

In Bauder v. Florida Department of Corrections, decided in September, the 11th U.S. Circuit Court of Appeals at Atlanta upheld a district court’s grant of habeas corpus to a Florida man who accepted a plea agreement on charges of aggravated stalking of a minor after his lawyer allegedly advised him that he would not face involuntary civil commitment. (The state did have him civilly committed.)

The 11th Circuit panel, citing Padilla, said the defense counsel’s “deficient performance was his affirmative representation that [the defendant] would not be exposing himself to further detention past his sentence” if he accepted the plea.


In December, an Alaska state appeals court, also citing Padilla, held that a defendant had established a prima facie case of ineffective assistance of counsel when his lawyer in an assault case failed to advise him that a no-contest plea could be used against him in a related civil damages lawsuit.

American University associate law professor Jenny Roberts says there have been more than 100 lower court decisions citing Padilla since the case was decided in March 2010. A number of courts have backed ineffective-assistance claims on a range of collateral consequences, including a failure to inform the client about sex-offender registration, restitution requirements and effects on civil suits.

But other courts have declined to extend Padilla to nondeportation consequences, including several on sex-offender registration and others on civil liability and loss of employment.

Last July, a federal district court in Missouri ruled against a defendant who cited Padilla in claiming ineffective assistance of counsel because his lawyer did not tell him that pleading guilty to sexual abuse could lead to a requirement that he register as a sex offender.

“In this case, registration as a sex offender is not punitive,” the district court said. “Unlike deportation, the act of registration does not restrict the physical movement of the defendant.”

Law professor Roberts says Stevens worked hard in his Padilla opinion to say that deportation was unlike other collateral consequences. “But I don’t think you can draw the line and say the defense lawyer’s obligations end at deportation.”

Luongo agrees. “Immigration is not where the buck is going to stop,” she says. “The list of collateral consequences has grown in the last decade to include many that are life-altering and devastating to our clients.”

Fordham University law professor Bruce Green, chair of the ABA’s Criminal Justice Section, notes that the section is well along on an earlier project, funded by the National Institute of Justice, to develop a database on collateral consequences in every U.S. jurisdiction.

The question for the comprehensive representation task force is: “How can criminal defense lawyers get closer to the ideal ” Green says. “What are the obstacles to lawyers providing that assistance “

Some in the legal defense community call the more comprehensive approach holistic, with front-line defenders needing to be aware of the full range of consequences facing their clients, and sometimes calling on other attorneys with expertise in immigration, housing or other areas.

“The push-back is, what are the resources required to do this ” Luongo says. “This will require more staff and more work done on each case.”


While much of the discussion around the Padilla decision centers on the role of defense lawyers, the case also has implications for prosecutors and for the trial judges who must approve plea agreements.

In an article in the ABA’s Criminal Justice quarterly last year, Washington, D.C., attorney Margaret Love and University of Arizona law professor Gabriel J. Chin noted that prosecutors and judges who want their plea agreements to hold up on appeal will want to require confirmation, as part of a plea colloquy or written agreement, that the defense lawyer has provided the defendant with a Padilla advisory.

Scott Burns, the executive director of the National District Attorneys Association in Alexandria, Va., says he is concerned about the “breadth and scope of what some people see as collateral consequences.”

Burns worries that a criminal plea might have to address whether a defendant could “no longer be a barber in Maryland” or “could not buy alcohol in three counties.”

“These are not things that prosecutors would see as collateral consequences,” Burns says. “But are we really going to have a 200-page plea agreement “

The task force is planning a conference this summer and hopes to release a report and recommendations within a year, Green says.

“This is a very big project and we hope to do it well,” Green says. “The idea is not to focus on the constitutional minimum, but to develop a vision for really good defense lawyering.”

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