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Applying Padilla V. Kentucky to Sex Offenders: An Argument for Extending the Supreme Court's Recent Deportation Decision to Sex Offender Registration Requirements and Civil Commitment under Sexually Violent Predator Statutes

Article excerpt

ABSTRACT: Historically, most courts have held that defense attorneys are only required to notify defendants of the direct consequences of plea bargains--incarceration, probation, and fines. In its recent decision in Padilla v. Kentucky, however, the Supreme Court for the first time extended a defense attorney's duty under the Sixth Amendment. The Court held that if a defense attorney fails to inform his client of the immigration consequences of a plea, the defendant may be able to claim that he received ineffective assistance of counsel and may, if he meets the ineffective assistance standard set by Strickland v. Washington, withdraw his plea on appeal. This Note discusses the Padilla decision in light of the consequences of pleas that affect sex offenders--registration requirements, residency restrictions and civil commitment under state Sexually Violent Predator (SVP) statutes. It argues that Padilla should and likely will be extended to require notification of registration requirements and residency restrictions because these consequences share the characteristics of deportation that the Padilla court found to be significant--they are automatic, immediate, and burdensome. SVP civil commitment, however, does not fit as neatly within the framework of Padilla, and is less likely to fall within an attorney's Sixth Amendment duty because additional procedural protections exist for those to whom it is applied. Nevertheless, this Note will argue that notification of the possibility of involuntary SVP commitment should fall within a defense attorney's duty, as indefinite deprivation of liberty is significantly more severe than deportation or registration.

I) INTRODUCTION

The consensus among most jurisdictions historically has been that neither courts nor defense attorneys have a duty to advise a defendant of the collateral consequences of a plea. Collateral consequences are typically defined as any that are not immediately or directly imposed by the court accepting the plea; these consequences have included things such as residency and employment restrictions, enhanced sentences for future convictions, loss of government benefits, registration as a sex offender, and deportation. In Padilla v. Kentucky, however, the Supreme Court recently extended a defense attorney's duty under the Sixth Amendment to require that he notify a defendant of the possibility of deportation following a plea. (1) The March 2010 decision held that if a defense attorney fails to inform his client of the immigration consequences of a plea, the defendant may be able to claim that he received ineffective assistance of counsel and may, if he meets the ineffective assistance standard set by Strickland v. Washington, withdraw his plea on appeal. (2)

Despite the fact that the Court in Padilla may have signaled a narrow holding by emphasizing that deportation is a "unique" consequence, courts already are starting to extend the decision to require that attorneys inform clients of other collateral consequences as well. (3) Sex offenders face particularly burdensome collateral consequences. Almost all sex offenders are subject to registration requirements, many are subject to residency restrictions, and some may be subject to involuntary civil commitment under state sexually violent predator (SVP) statutes. Padilla should and likely will be extended to require notification of registration requirements and residency restrictions because these consequences share the characteristics of deportation that the Padilla court found to be significant--they are automatic, immediate, and burdensome. SVP civil commitment, however, does not fit as neatly within the framework of Padilla, and is less likely to fall within an attorney's Sixth Amendment duty because additional procedural protections exist for those to whom it is applied. Nevertheless, this Note will argue that notification of the possibility of involuntary SVP commitment should fall within a defense attorney's duty, as indefinite deprivation of liberty is significantly more severe than deportation or registration. …