Academic journal article Fordham Urban Law Journal

A Gauntlet Thrown: The Transformative Potential of Padilla V. Kentucky

Academic journal article Fordham Urban Law Journal

A Gauntlet Thrown: The Transformative Potential of Padilla V. Kentucky

Article excerpt


  I. The Meaning of Padilla v. Kentucky
     A. The Key Factors: Severity and Automatic Application
     B. Clarity and the Level of Advice Required
 II. The Transformative Power of Padilla
III. Padilla and Hurdles to Full Implementation
     A. Duty Without Prejudice: What is a Right Without a
     B. Padilla and the Indigent Defense Crisis
        1. Challenging Public Defender Caseloads
        2. Padilla's Relevance to Caseload Challenges


In Padilla v. Kentucky, (1) a lawyer misadvised his client. He stated that the client did not need to worry about deportation when pleading guilty to a drug distribution offense. When the government subsequently initiated deportation proceedings, the client moved to vacate the underlying criminal conviction on the ground of ineffective assistance of counsel. The Supreme Court held that, under the circumstances presented, the lawyer had a duty to correctly advise his client about the deportation consequences of a conviction.

The obvious question is, how far will the Court's holding in Padilla extend? Some argue that it has started a revolution, fundamentally altering the concept of the criminal sentence and eradicating the distinction between direct and collateral consequences. Others contend that Padilla is likely to alter very little because the opinion is narrow, the consequence of non-compliance is small, and the workload of the criminal defense bar, or at least the indigent defense bar, is already unmanageable.

I assert that the power to determine the long-term meaning of Padilla lies primarily with the defense bar. If defense lawyers, particularly public defenders and court-appointed counsel, become mired in skepticism about the time and resources needed to fulfill the letter, no less the spirit, of the Padilla decision, the decision may change very little. If instead they embrace Padilla and utilize its mandate as a tool to fight for the resources necessary to provide each client with effective representation, the effect could be transformational. The defense bar must be at the forefront, arguing for a broad interpretation of Padilla, embracing the duty to warn each client of all of the severe consequences of his potential conviction and, further, utilizing this information together with information about the client's life and goals to achieve the best outcome for that individual.

The first section of this Article analyzes the Padilla case, demonstrating that the decision does require defense lawyers affirmatively to advise clients of the applicability of a large segment of collateral consequences, as well as provide detailed information about other potentially applicable collateral consequences. Part II discusses how Padilla's focus on the importance of a consequence to a client has the potential to transform the defense function. Part III examines whether hurdles to the implementation of Padilla, particularly the crisis in indigent defense, will curtail this transformation and outlines how Padilla, in fact, can particularly assist public defense lawyers to obtain greater resources.


Padilla v. Kentucky concerned a man who had been a lawful permanent resident of the United States for over forty years, including serving as a member of the U.S. Armed Forces. (2) Mr. Padilla pled guilty to drug distribution charges after his lawyer assured him that because he had been legally in the United States for so long, he did not need to worry about deportation as a consequence of conviction. (3) In reality, after Padilla entered a guilty plea to drug distribution, his deportation was virtually automatic. (4)

Once deportation proceedings were initiated, Mr. Padilla challenged his drug distribution conviction, asserting that absent his counsel's erroneous advice about deportation, he would not have pled guilty. …

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