Padilla & the Prosecutor

So, how does Padilla v. Kentucky affect those of us on the prosecution side of the aisle?

It's more than a little ridiculous to expect defense attorneys practicing in State courts to understand the intricacies of immigration law. How ridiculous? Well let's look at the list of sources which Justice Stevens uses to back his claim that it is a normal standard of practice for defense attorneys to be fluent in and advise clients as to immigration law:

National Legal Aid and Defender Assn., Performance Guidelines for Criminal Representation §6.2 (1995); G. Herman, Plea Bargaining §3.03, pp. 20–21 (1997); Chin & Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 713–718 (2002); A. Campbell, Law of Sentencing §13:23, pp. 555, 560 (3d ed. 2004); Dept. of Justice, Office of Justice Programs, 2 Compendium of Standards for Indigent Defense Systems, Standards for Attorney Performance, pp. D10, H8–H9, J8 (2000) (providing survey of guidelines across multiple jurisdictions); ABA Standards for Criminal Justice, Prosecution Function and Defense Function 4–5.1(a), p. 197 (3d ed. 1993); ABA Standards for Criminal Justice, Pleas of Guilty 14–3.2(f), p. 116 (3d ed. 1999).

Now, let's compare that to the real world courts which have rejected this idiocy (and which Justice Stevens buries in a footnote):

United States v. Gonzalez, 202 F. 3d 20 (CA1 2000); United States v. Del Rosario, 902 F. 2d 55 (CADC 1990); United States v. Yearwood, 863 F. 2d 6 (CA4 1988); Santos-Sanchez v. United States, 548 F. 3d 327 (CA5 2008); Broomes v. Ashcroft, 358 F. 3d 1251 (CA10 2004); United States v. Campbell, 778 F. 2d 764 (CA11 1985); Oyekoya v. State, 558 So. 2d 990 (Ala. Ct. Crim. App. 1989); State v. Rosas, 183 Ariz. 421, 904 P. 2d 1245 (App. 1995); State v. Montalban, 2000–2739 (La. 2/26/02), 810 So. 2d 1106; Commonwealth v. Frometa, 520 Pa. 552, 555 A. 2d 92 (1989).

So, on the the one side we have actual courts which recognize the reality. On the other side we have a widely disparate set of habeas-bait "standards" (invariably impossible to follow: see this post), never used procedural books (I'd even go so far as to say never heard of, but someone out there must have), ABA standards which laughed at by actual practitioners (actual criminal law attorneys don't have time to waste with that organization), and a law review article (you're kidding?!? tell me you're kidding). On one side are 11 courts (including Kentucky) which have held the opposite of Justice Stevens decided (btw, where's the circuit/State supreme courts split that required the federal supreme court to step in address this issue?); on the other side are the best sources which Stevens' clerks could scrape up by combing through the law library. This just screams of results oriented rationalization.

Immigration effects has been a major meme that has been thrust upon criminal practitioners for a while now. It seems like every CLE has one hour in which a professor or immigration lawyer stands in front of the room and lectures on consequences of convictions. Meanwhile, the practitioners browse the web, read newspapers, work on that brief due Friday (you know - what practitioners do at every CLE). I've actually tried to pay attention and come to one conclusion. There is no way that anyone who is not steeped in the labyrinthine disaster zone which is immigration law can possibly advise a defendant properly. To quote myself:

Then came a section on collateral effects of a criminal conviction on aliens. What did I take away from this section? If you're a defense attorney and your client is an alien, call an immigration attorney because you will never be able to figure out the morass that is immigration law.

IMO, the best a practicing defense attorney can really advise an immigrant client is that a conviction might effect his immigration status. More than that and the attorney is really speculating.

The problem is compounded by the reality on the ground. Immigration officials are stretched thin. I currently work in an area where there aren't a large number of immigrants in the system. However, before I came here I was in a locale where it was not unusual to see several immigrants per day in court. I can remember talking to State officials and defense attorneys who specialized in Spanish language defendants and hearing the same thing more than once, "Yes, the feds can deport, but they don't want to be bothered unless there is a violent felony." Of course, it wasn't always phrased quite so blandly. So, the attorney in Padilla's case may have been giving what was basically reality based advice based upon experience. I haven't seen the feds swoop in and deport people therefore, they shan't do it to you. Of course, the problem with this is that the feds can alter their behavior randomly and unilaterally. And, in Padilla's case someone in the federal government thought that transporting a tractor-trailer full of marijuana might just be a reason to deport someone.

So, getting back to reality as the Supreme Court has now defined it for us, what are the practical effects on the ground? Well, we know that a lot of attorneys aren't going to pro-actively advise the possible immigration consequences of a conviction. We also know that even when they do there will be appeals and habeases in which the defendant claims that he wasn't notified. Hopefully, judges will start adding the question to the plea colloquy, "Are you aware that if you are an immigrant a conviction may effect your immigration status?" Unfortunately, I can't do anything to effect that change. However, I can change the language in my plea agreements (whether or not Scott will advise his clients to sign them). Henceforth, all my plea agreements will contain the following language:

Immigration Consequences: The defendant understands that if he is an immigrant any conviction may effect his immigration status and that federal law allows deportation for drug convictions.

I suggest that any prosecutor out there develop similar language and insert it into their pleas until such time as the judges have changed their colloquies.