April 02, 2019

Status as Punishment: Padilla v. Kentucky

In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court ruled that criminal defense lawyers must advise their noncitizen clients considering a guilty plea that they are likely to be deported as a result. It is the first time the Court has extended the Sixth Amendment right to counsel to a consequence of conviction that is not part of the court-imposed punishment. Padilla offers important protections for noncitizens who are in the criminal justice system. But it has broader implications.

This article places Padilla in the larger framework of modern criminal justice to understand its justifications and implications in public policy terms. First, we propose that the logic of the decision extends to other severe and certain collateral consequences of conviction. Next, we review the reasons given for treating collateral consequences differently from other important consequences of conviction and conclude that there is no longer a principled basis for this distinction. Finally, we describe efforts by the American Bar Association (ABA) and the Uniform Law Commission to make it possible for criminal defense attorneys to offer adequate advice to their clients about collateral consequences.

The decision writ large. The factors the Padilla Court identified as important in its determination suggest paths for both limitation and expansion of the holding. The critical characteristics of deportation that made it a proper subject for counsel’s advice and advocacy in the plea process were that it was severe from the defendant’s point of view and virtually automatic. Although it is true that deportation is a particularly significant consequence, others are of similar magnitude. Also, at least in some cases, these consequences will share the characteristics the Court recognized as important in Padilla: They follow automatically from conviction and thus are tied directly to the criminal case; they are important to the individuals involved; and they may therefore drive plea bargains.

Several developments have made status as a convicted person more important and may explain the Court’s willingness to consider counsel’s duty in terms of the large and growing place of criminal conviction in overall regulatory policy. Criminal conviction was once a rare measure applied to a narrow slice of the population. In recent decades it has become a common tool of regulation that applies to many people in different ways. At the same time, conviction has assumed a larger role in legal codes as a sorting and risk-management device. Padilla may be understood as the Court’s recognition that the expanded functions of conviction warrant an expanded role for counsel.

The civil/criminal divide. One rationale for excluding collateral consequences from counsel’s duty rested on the noncriminal nature of the consequence. Deportation and other collateral consequences were civil, the logic went, so even if they were imposed because and only because of a criminal conviction, they were still beyond the scope of the Sixth Amendment.

This rationale was problematic, in part because the civil/criminal distinction was either difficult to apply or arbitrary. Treating collateral consequences as purely civil was also in tension with their historical association with criminal conviction. However, the effects in broad scope have been consistent: Based on conviction of a serious crime, a person loses civil rights. In the United States, the civil death associated with felony conviction was historically regarded as punishment, and it is still understood as punishment today. For these reasons, the civil/criminal distinction was not a fully satisfying explanation for treating collateral consequences as outside the Sixth Amendment.

The direct/collateral distinction. Another rationale came from Brady v. United States, 397 U.S. 742 (1970), one of the important cases establishing the elements of a valid guilty plea. Many courts interpreted it to mean that a defense attorney, like a judge, need not consider collateral consequences in the course of representing a client in a guilty plea. One problem with the  rationale based on the Brady distinction between direct and collateral consequences is that it assumes the duties of counsel and the court are identical, which is doubtful in an adversary system. Another problem was definitional. Was a consequence collateral if it was within the authority of the trial court, or was it collateral if it was not within the authority of the trial court? The same circuits sometimes reasoned both ways. A more substantive problem was that rigid enforcement of the collateral consequence rule led to what appeared to some to be gross injustices. For example, in several reported cases, defendants facing capital charges in one case pleaded guilty to separate noncapital charges in another case, without being advised that the conviction in the second case would be an aggravating factor in the pending capital case. Further, it is possible for a noncitizen to be deported based on a plea to a minor offense.

Toward a systemic solution: The ABA standards and the Uniform Law Commission. In 1983 the ABA Criminal Justice Standards on the Legal Status of Prisoners predicted with a remarkable myopia that the era of collateral consequences was drawing to a close: “As the number of disabilities diminishes and their imposition becomes more rationally based and restricted in coverage, the need for expungement and nullification statutes decreases.”

By 1997 it was clear that reports of their impending demise had been exaggerated. The ABA Standards on Pleas of Guilty published in that year recognized that “the number and significance of potential collateral consequences has grown to such an extent that it is important to have a separate standard that addresses” the obligation of lawyers to advise their clients about them. Six years later, in order to make it possible for counsel to give reliable advice, the 2003 ABA Criminal Justice Standards on Collateral Sanctions and Discretionary Disqualification of Convicted Persons urged jurisdictions to collect and consolidate collateral consequences in a single title or volume of a state’s code, either by reference or wholesale transfer.

The next step toward a systemic solution was taken by the Uniform Law Commission, which in 2004 began drafting a uniform act. Section 4 of the Uniform Collateral Consequences of Conviction Act, adopted in 2009, provides for the collection, publication, and updating of a list or summary of collateral consequences in force in enacting states, as well as provisions for relief. Section 5 provides that the defendant must be advised at arraignment that collateral consequences will be associated with any conviction. Section 6 provides that the notice should be reiterated at sentencing or, if the individual is incarcerated, upon release.

Beyond Padilla. The clear implication of Padilla is that counsel must now advise clients about at least some reasonably foreseeable legal consequences that are triggered by the fact of conviction under applicable statutes and regulations. It remains to be seen which consequences will ultimately be held within the obligation of counsel.

In the short run, we predict that counsel’s advice at the plea stage will quickly extend beyond immigration consequences. Prosecutors and judges who do not want to see today’s cases return in six months will take an increasingly active part in ensuring that defendants know about collateral consequences and will put advice and notice on the record of the plea. State legislatures by statute and courts by rule will insist on formal notice. We also predict that jurisdictions will develop ways of avoiding or mitigating collateral consequences through front-end limitations on applicability and back-end provisions for relief. 



- This article is an abridged and edited version of one that originally appeared on page 21 of Criminal Justice, Fall 2010 (25:3).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

- Website: www.abanet.org/crimjust.

- Periodicals: Criminal Justice, quarterly magazine; Criminal Justice Newsletter, three times per year; Juvenile Justice Newsletter, three times per year (electronic); White Collar Crime Newsletter, three times per year (electronic).

- Books and Other Recent Publications: Trial Tactics; Street Legal; The Citizenship Flowchart;  The State of Criminal Justice; Leapholes (fiction); Achieving Justice: Freeing the Innocent, Convicting the Guilty; ABA Standards for Criminal Justice; Annual Survey of Supreme Court Decisions; Asset Forfeiture: Practice and Procedure in State and Federal Courts; The Child Witness in Criminal Cases; The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers; Fourth Amendment Handbook, 2d ed.; Juvenile Justice Standards, Annotated; The Shadow of Justice (fiction); A Portable Guide to Federal Conspiracy Law: Tactics and Strategies for Criminal and Civil Cases; Practice Under the Federal Sentencing Guidelines; Restitution for Crime Victims: A National Strategy; Successive Criminal Prosecutions: The Dual Sovereignty Exception to Double Jeopardy in State and Federal Courts.