By Jason Reigert, Albany Government Law Review Class of 2011
Anyone who watches Law and Order can tell you that in a criminal matter every American is entitled to the right to be represented by an attorney. This right is better known as the “right to effective assistance of counsel” and it is guaranteed by both the federal and New York State constitutions.[i] The right to effective counsel has been expanded over the years, and the case of Padilla v. Kentucky is a good example of such expansion. In Padilla v. Kentucky, the Supreme Court expanded the notion of effective assistance of counsel to include an obligation by defense attorneys to inform their clients of possible deportation consequences. As a result of this decision, a wave of defendants have recently sought to vacate their guilty pleas under a theory of ineffective assistance of counsel, due to being improperly informed of the potential deportation consequences. While Padilla has caused an increase in ineffective assistance of counsel claims, Padilla has not had as much of an impact as some might expect.
In Padilla, the U.S. Supreme Court held that defense counsel has an obligation to advise a defendant that entering a guilty plea could result in deportation.[ii] The issue arose when the defendant was arrested on state drug trafficking and possession charges.[iii] The defendant was a lawful permanent resident from Honduras who had lived in the U.S. for nearly forty years, and after being arrested raised the subject of his immigration status with his attorney.[iv] Defense counsel assured the defendant that he would not be deported as a consequence of his guilty plea.[v] The defendant entered a guilty plea and shortly after was contacted by immigration authorities regarding deportation.[vi] The defendant subsequently argued that his attorney was ineffective for misadvising him about the potential for deportation.[vii] The Kentucky Supreme Court denied the defendant’s argument, reasoning that the attorney’s erroneous advice could not have constituted ineffective assistance, since the Sixth Amendment did not require counsel to address the collateral effect of a guilty plea on a defendant’s immigration status.[viii] The U.S. Supreme Court overruled the Kentucky Supreme Court, finding that deportation proceedings are “intimately related to the criminal process.”[ix] In doing so, the Supreme Court rejected the Kentucky Supreme Court’s determination that deportation was a collateral consequence of a guilty plea.[x] Thus, in cases where the law is not succinct and straightforward, defense attorneys need only advise non-citizen defendants that the pending charges may carry a risk of adverse immigration consequences. Further, the court rejected any suggestion that the Strickland ineffectiveness standard only applies to an attorney’s affirmative misadvice concerning the immigration consequences of a plea.[xi] The Court reasoned that such a standard would lead to the absurd results of giving attorneys an incentive to remain silent and would deny a class of defendants who are “least able to represent themselves the most rudimentary advice on deportation.”[xii]
So where does that leave us? Before looking further at the effects of Padilla, we must explore how one brings about a claim of ineffective assistance of counsel. In order to establish a constitutional violation under the federal Sixth Amendment standard, a defendant must satisfy a two-pronged test. First, the defendant must demonstrate “that counsel’s representation fell below an objective standard of reasonableness.”[xiii] Next, the defendant must prove that he/she suffered prejudice as a result of defense counsel’s ineffectiveness.[xiv] In order to prove prejudice a defendant must prove “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”[xv] When determining the effectiveness of defense counsel’s representation, all factors “must be weighed in context and as of the time of representation.”[xvi]
The Supreme Court in Padilla, held that “advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.”[xvii] The majority opinion, as written by Justice Stevens, acknowledged that “deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on non-citizen defendants who plead guilty to specified crimes.”[xviii] The Court concluded that “[t]he weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.[xix] The Supreme Court, refused to conclude that Strickland applies only when a defendant claims that he received ineffective assistance of counsel because his attorney affirmatively misadvised him regarding the immigration consequences of his guilty plea.[xx] In order for counsel to satisfy their responsibility, the court held “that counsel must inform her client whether his plea carries a risk of deportation.”[xxi]
This means that under the first prong of the Strickland ineffective assistance of counsel standard, counsel’s performance falls below an objective standard of reasonableness when counsel fails to inform a client of the consequences of a guilty plea.[xxii] The second prong of the Strickland test requires that a defendant show he was prejudiced by his counsel’s misconduct.[xxiii] Where the conviction was by plea, a defendant’s allegations of ineffective assistance of counsel “must be sufficient to show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”[xxiv] This means that “a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.”[xxv] Various courts have also held that in order to demonstrate prejudice a defendant should maintain that he is innocent of the charges in the indictment, or that a plausible defense to those charges exists.[xxvi]
Defendants attempting to make an ineffective assistance of counsel argument, based on Padilla, are having a difficult time meeting the Strickland standard. Establishing “deficient representation” is not as easy as it may appear. Even though the Padilla decision put deportation consequences in the gambit of the Sixth Amendment, it did not do so in all situations.[xxvii] The Padilla Court held that counsel need only “inform her client whether his plea carries a risk of deportation.”[xxviii] However, the Court acknowledged circumstances where deportation may not be plainly obvious and in such circumstances it might not be unreasonable for counsel to fail to inform their client of deportation consequences.[xxix] Showing deficient representation requires a showing that “in light of all of the circumstances, the identified acts or omissions [are] outside the wide range of professionally competent assistance.”[xxx] In addition, because of the intrinsic difficulties in making such a finding, courts are required to “indulge a strong presumption that [an attorney’s] conduct falls within the wide range of reasonable professional assistance.”[xxxi] This makes it extremely difficult for defendants to prove that their attorney’s representation was deficient as a result of their misadvice regarding deportation, unless such advice is clearly erroneous or unless defense counsel fails to inform the defendant of a deportation consequence that is plainly obvious.
Even if a defendant can prove that their attorney’s representation fell below an objective standard of reasonableness, proving “prejudice” is likely to be a formidable challenge. Demonstrating prejudice with respect to a decision to plead guilty requires the petitioner to show that there is a reasonable “probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”[xxxii] Within the context of a guilty plea this means there is a reasonable probability that, but for counsel’s errors, the petitioner wouldn’t have pleaded guilty and instead would have insisted on going to trial. This can be extremely difficult for a defendant to argue, when deportation is a necessary result of their being convicted. The problem that defendant’s face is how can they show that they were prejudiced by their attorney’s misadvice or failure to advise about deportation, when deportation is an inevitable result of their being found guilty. The only argument that remains is that while going to trial and losing would not in and of itself effect a defendant’s deportation status, a defendant has nothing to lose by going to trial and everything to gain. Defendants are left to argue that had they been fully informed by their attorney of the deportation consequences that would result from their plea, that they would have gone to trial. As you can see, this is often a fleeting argument, because there is no way of knowing what the defendant may or may not have done had they been informed of the deportation consequences.
In conclusion, Padilla has not had as much of an impact as some may have originally expected. What Padilla appears to have done is increase the number of defendants raising ineffective assistance of counsel claims as a result of not fully understanding the deportation consequences at the time they plead guilty. However, the difficulties with establishing deficient representation and prejudice as a result of the misadvice of counsel regarding deportation, has resulted in few defendants actually being able to win on such a claim. In the end, it seems that Padilla really only ends up effecting future assistance of counsel and not those already harmed by their attorney’s ineffectiveness regarding deportation. While it may be too late for many of the defendants who pled guilty unaware of deportation consequences, Padilla will go a long way in forcing defense attorney’s to do a better job ensuring that their client’s guilty pleas are made knowingly, voluntarily, and intelligently.
[i] See U.S. Const. Amend. VI; N.Y. Const., art I, § 6; see also People v. Baldi, 429 N.E.2d 400, 404 (1981).
[ii] Padilla v. Kentucky, 130 S.Ct. 1473, 1486 (2010).
[iii] Id. at 1483.
[iv] Id. at 1477.
[v] Id. at 1478.
[viii] Padilla, 130 S.Ct. at 1478.
[ix] Id. at 1481.
[x] Id. at 1481-82.
[xi] Id.at 1484.
[xiii] Strickland v. Washington, 466 U.S. 668, 687–88 (1984).
[xiv] Id. at 692.
[xv] Id. at 694.
[xvi] People v. Hobot, 646 N.E.2d 1102, 1103 (1995).
[xvii] Padilla, 130 S.Ct. at 1476.
[xviii] Id. at 1480.
[xix] Id. at 1482 (internal citations omitted).
[xx] Id. at 1484.
[xxi] Id. at 1486.
[xxii] Id. at 1483–84.
[xxiii] People v. McDonald, 802 N.E.2d 131, 133-34 (2003).
[xxiv] Id. at 135 (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
[xxv] Padilla, 130 S.Ct. at 1485; see Roe v. Flores-Ortega, 528 U.S. 470, 480, 486 (2000).
[xxvi] See United States v. Horne, 987 F.2d 833, 836 (D.C. Cir. 1993); Czere v. Butler, 833 F.2d 59, 64 (5th Cir. 1987); People v. Xue, 815 N.Y.S.2d 566 (N.Y. App. Div. 2006); People v. Hayes, 588 N.Y.S.2d 328 (N.Y. App. Div. 1992).
[xxvii]Padilla, 130 S.Ct. at 1485.
[xxviii] Id. at 1486.
[xxix] Id. at 1483.
[xxx] Strickland, 466 U.S. at 690.
[xxxi] Id.; see also People v. McDonald, 802 N.E.2d 131, 135 (2003).
[xxxii] Strickland, 466 U.S. at 694.