Academic journal article Northwestern University Law Review

"No Logical Stopping-Point": The Consequences of Padilla V. Kentucky's Inevitable Expansion

Academic journal article Northwestern University Law Review

"No Logical Stopping-Point": The Consequences of Padilla V. Kentucky's Inevitable Expansion

Article excerpt

ABSTRACT-In Padilla v. Kentucky, the Supreme Court held that criminal defense attorneys must warn their noncitizen clients of the adverse immigration consequences that may result from a guilty plea. Lower federal courts will inevitably expand the rule from Padilla to apply to other socalled "collateral consequences" of guilty pleas. Although the extension of Padilla to more (or all) collateral consequences of guilty pleas might theoretically raise the standard of defense attorney effectiveness and thus benefit criminal defendants, the reality is that the cost of extension will outweigh the benefits, because the provision of effective assistance will become prohibitively costly. If "Padilla warnings" are ultimately required for all collateral consequences of a guilty plea, criminal lawyers will have a difficult time effectively assisting their clients.


Jose Padilla, a Honduran national but a forty-year permanent resident of the United States, pleaded guilty to possession of marijuana in the state of Kentucky.1 Under United States law, almost all drug-related offenses, including marijuana possession, render non-United States citizens who commit them "deportable."2 However, Padilla's attorney, who advised him to plead guilty, did not inform him of the risk of deportation.3 Instead, he incorrectly advised Padilla that he "did not have to worry about immigration status since he had been in the country so long."4

Six days after entry of judgment, Padilla's correctional facility notified the Immigration and Naturalization Service (INS) that it had lodged a detainer against Padilla as a precursor to deportation.5 He then filed a motion for postconviction relief in which he alleged that his attorney provided ineffective assistance of counsel.6 Following conflicting decisions at the trial and appellate levels-the trial court denying postconviction relief and the appellate court granting it-the Kentucky Supreme Court denied Padilla's motion.7 The court found that the possibility of deportation was a collateral consequence8 of a guilty plea and held that neither affirmative misadvice about nor failure to advise of a collateral consequence constituted a violation of a person's Sixth Amendment right to assistance of counsel.9

The United States Supreme Court granted certiorari and reversed.10 The Court held that "constitutionally competent counsel would have advised [Padilla] that his conviction for drug distribution made him subject to automatic deportation."11 Since Padilla's counsel failed to so advise him, Padilla would, on remand, be able to argue that his attorney had been ineffective.12

Some commentators have called the Padilla decision a boon for both criminal defendants and the criminal defense bar.13 To some extent, it was: the decision was certainly favorable to Jose Padilla himself, and the requirement that criminal defense lawyers learn the basics of immigration law in order to provide "Padilla warnings"14 to their clients might similarly assist other noncitizen criminal defendants. As a result of the decision, those defendants-if they did not receive Padilla warnings-may be able to obtain postconviction relief in the form of withdrawn guilty pleas, new trials, or both.

This Note argues that while the decision in Padilla was a win for Jose Padilla and similarly situated noncitizen criminal defendants, it poses significant problems for criminal defendants, their lawyers, and the entire criminal justice system. The majority's opinion purported to limit itself to immigration consequences15 and it justified that limitation by pointing to the "severity" of deportation.16 However, guilty pleas can have innumerable collateral consequences other than deportation, and their relative severities are in the eye of the beholder.17 For this reason, Justice Scalia, in dissent, expressed an ominous concern that there was "no logical stopping-point" between requiring Padilla warnings for immigration and requiring such warnings for other-or even all-collateral consequences. …

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