Academic journal article Fordham Urban Law Journal

Conference Report: Padilla and the Future of the Defense Function

Academic journal article Fordham Urban Law Journal

Conference Report: Padilla and the Future of the Defense Function

Article excerpt

Introduction

  I. The Immediate Impact of Padilla
 II. Consequences Beyond Immigration and The Promise of and
     Problems With Checklists
III. Resources and Partnerships
IV.  A New Type of Defense Lawyer?: The Challenges of
     Hiring, Training, and Supervising in a Post-Padilla World
     A. Hiring
     B. Training
     C. Supervision
     D. Certification
  V. Rethinking the Law School Curriculum Through the Padilla
     Lens
 VI. The Need for Data
Conclusion: Much More Work Remains
Appendix A: Agenda

INTRODUCTION

In March 2010, the Supreme Court held in Padilla v. Kentucky that the failure to advise a client that a guilty plea carried the risk of deportation violated the Sixth Amendment. (1) Just over a year later, on June 20 and 21, 2011, more than eighty professionals were invited to reflect on the future of the defense function in light of Padilla at a conference sponsored by the National Legal Aid and Defender Association (NLADA) and National Association of Criminal Defense Lawyers (NACDL) and co-sponsored by the American Bar Association Criminal Justice Section Task Force on Comprehensive Representation.

Defense lawyers from public defender organizations and private practices from across the country joined leading clinical and doctrinal professors and other lawyers specializing in both immigration and other areas affected by the "collateral" consequences of criminal conviction. Through eleven panel discussions, this esteemed group looked back briefly on Padilla and the current state of affairs. Primarily, however, they looked to the future, focusing on the obligations, challenges, and promises arising from Padilla. The impressive agenda appears at the end of this report. The pages in between offer a summary of the key topics of discussion, including the immediate impact of Padilla on defense lawyers, the case's early reach beyond the realm of immigration, and the interplay between ethical and practice standards. Recognizing that Padilla can be a "lever for systemic change," (2) the report turns to the future in considering whether Padilla suggests that a new type of criminal defense lawyer should be hired, trained, and supervised; the ways that law school curricula may be refined to meet the challenges and the promise of Padilla; the broader concerns for partnerships and resources in realizing Padilla's potential; and, finally, a theme throughout the conference: the need for concerted data collection to achieve many of these goals.

I. THE IMMEDIATE IMPACT OF PADILLA

Participants debated and discussed the significance of Padilla in both the near and long term. For some defender organizations--like the Bronx Defenders, which has long taken a holistic approach to defense representation--the significance in day-to-day functioning has been minimal. (3) For other defense organizations or appointed counsel, the expectations underlying Padilla suggest a significant shift. Unfortunately, some lawyers do not do basic things like interview witnesses or talk to their clients. Expecting these lawyers now to provide a broad array of Padilla advisements is optimistic, to say the least. (4) When judges have the power to appoint counsel, some will appoint those lawyers who push back (and do) the least. (5)

Although the conference focused on Padilla, the discussion at times broadened to the concerns that pervade the entire criminal justice system. Overcriminalization has been a concern for decades. It is now an even greater concern, not because of the direct consequences that arise from a misdemeanor or low-level felony conviction, which often consist of a short term of probation at most, but rather because of numerous and expanding collateral consequences. (6) The criminalization of dog leash violations, feeding the homeless, fish and game violations, and turnstile jumping clogs courtrooms and then burdens violators with the serious, life-long consequences that result from a conviction. …

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