A day after I bemoan the dilemma a lawyer faces in deciding whether to seek the withdrawal of a plea that he believes has substantially benefited his client, the US Supreme Court comes down with a decision that may further complicate our lives.  In Padilla v. Kentucky, the court holds that his lawyer screwed up by not telling him that his guilty plea meant he’d be deported.

Padilla was a native of Honduras, but had been a lawful permanent resident of the US for over 40 years, even serving in the Army during the Vietnam War.  He’d been apprehended with a truck-load of marijuana in Kentucky, but his lawyer assured him that he “did not have to worry about immigration status since he had been in the country so long.”

Wrong answer.  As the Court informs us during a leisurely stroll through the history of immigration, while that may have been true at one time, it’s not any longer.  The era of open immigration lasted about a century, until Congress passed a law barring convicts and prostitutes in 1875.  It wasn’t until 1917 that a person could be deported for something that he did while in this country, but even then judges had the exclusive power to enter an order at sentencing precluding deportation. 

But that power was limited in 1952, and eliminated altogether in 1990.  Six years later, Congress abolished the Attorney General’s power to grant discretionary relief from deportation.  During this same period, especially after 9/11, the number of crimes which require deportation has subsantially increased.  Drug offenses are one:  under current law, anything other than possession of 30 grams or less of marijuana gets you bounced out.  And nobody has any authority or discretion to change that fact.

When deportation proceedings began against Padilla, he filed a post-conviction relief petition arguing that his attorney had been ineffective.  The Kentucky courts determined that counsel wasn’t required to advise a client on a “collateral matter,” such as immigration consequences of a conviction.  While recognizing that the Kentucky courts were “far from alone in this view,” the Court flatly rejected it, noting that the consequences of deportation could well be more severe than even a prison sentence, and that “the weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.”

There are several interesting aspects of the decision.  Here, the lawyer gave the wrong advice.   What if he hadn’t said anything at all, or merely advised his client that a plea might have immigration consequences, and that he should consult an immigration lawyer about that?  The Court recognizes that immigration law “is a legal specialty of its own,” and that where

the deportation consequences of a particular plea are unclear or uncertain a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.  But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.

Apparently, then, defense counsel does have the duty to investigate this “complex” area of law, a “legal specialty of its own,” to determine whether the deportation consequence is “truly clear.” 

Second, the decision doesn’t mean that Padilla’s out of the Honduran woods.  The standard for ineffective assistance involves a two-prong test:  whether the lawyer’s performance was deficient, and whether the client was prejudiced.  Padilla’s claim was that he never would have pled guilty if he’d known that he could be deported, but the court doesn’t have to accept that at face value, and even if it does, that doesn’t necessarily translate into a claim of prejudice:  the question is whether the evidence against him was so overwhelming that it’s certain he would have been convicted anyway.  If he was sure to be deported in any event — as the result of a trial or a plea – the advice of his lawyer becomes academic.

Third, exactly how all this affects other “collateral consequences” is uncertain.  The Court is surely correct in saying that deportation can be the most severe consequence of a particular conviction.  But convictions can have other severe collateral consequences, too.  If I have a client charged with minor misdemeanor possession of marijuana, a guilty plea would involve no more than a small fine.  Should he ever in his life be found in possession of a gun, however, he would be subject to a charge of having a weapon under disability — a drug conviction — which is a third degree felony, and subjects him to a prison sentence of 1 to 5 years.  (At least, that’s what the 1st District held six weeks ago in State v. Robinson.)  Am I required to advise him that he can no longer possess a gun?  Am I required to advise a client pleading guilty to a first drunk driving charge of how the penalties escalate for subsequent offenses?  To tell a client pleading guilty in a domestic violence case that a subsequent charge would be a felony?

These possibilities formed the basis of Alito’s opinion, joined in by Roberts, concurring in the judgment:  in their view, the lawyer was obligated only to

(1) refrain from unreasonably providing incorrect advice and (2) advise the defendant that a criminal conviction may have adverse immigration consequences and that, if the alien wants advice on this issue, the alien should consult an immigration attorney.

Scalia and Thomas would have gone further:  even affirmative misadvice does not constitute ineffective assistance if it’s on a collateral issue.

So, what are a lawyer’s obligations in advising a client of potential consequences of his plea?  Maybe not much more than Alito’s formulation; the facts of the case — the serious nature of deportation, Padilla’s longterm presence in this country, that he was given the wrong advice, and that the law was so clear that deportation was mandatory for his crime — helped in producing the result, and the Court might not have gone so far under a different set of facts.  But it’s pretty clear that a lawyer’s obligation in this regard is at least arguably greater than it was last week.