By: Brienna Christiano, Albany Government Law Review

In recent history, there has been a significant upheaval in the understanding of what criminal defense attorneys and trial courts are obligated to tell criminal defendants regarding the deportation consequences of the accepted plea agreement.[1] Recent Supreme Court cases have created a complex line of cases that led to the overruling of a landmark New York Court of Appeals case, People v. Ford, 86 N.Y. 2d 397 (1995).[2] These decisions have created a new procedure for criminal defense attorneys and trial courts prior to a criminal defendant’s acceptance of a plea deal.[3]

In 2010, the Supreme Court decided Padilla v. Kentucky, a groundbreaking case holding that a criminal defendant who is not informed by his attorney of the immigration consequences of a criminal conviction prior to accepting a plea deal has a viable ineffective assistance of counsel claim under the Sixth Amendment.[4] Prior to the Padilla decision, most state and federal courts did not require attorneys to inform their clients of the consequences of their convictions.[5] In Padilla, the defendant, a native Honduran and Vietnam veteran, had been a “lawful permanent resident of the United States for more than forty years.”[6] Padilla pled guilty to the transportation of marijuana.[7] He claims that prior to entering the plea, his counsel not only failed to inform him of the consequences of a criminal conviction, but also erroneously told him that because he had been a resident of the United States for so long, he “did not have to worry about immigration status.”[8] Padilla then accepted the plea, which subsequently led to deportation proceedings being brought against him.[9]

The Court applied the standard set out in Strickland v. Washington for ineffective assistance of counsel claims, and determined that counsel must advise her client regarding the risk of deportation.[10] The Court reasoned that it should be relatively simple for attorneys to look through the relevant deportation statute to decide if their client’s conviction could lead to immigration consequences down the road.[11] As opposed to complicated immigration law, the statute outlining behaviors that lead aliens to be deported from the United States is more simplistic and accessible.[12]

In 2013, the Supreme Court decided Chaidez v. U.S., 133 S.Ct. 1103 (2013),[13] which affects the application of Padilla to defendants whose convictions were final prior to 2010. In that case, the Court explicitly stated that the Padilla holding does not apply retroactively to a person whose conviction was final prior to the date of the Padilla decision in 2010.[14] The appellant in Chaidez was similarly uninformed that her conviction would subject her to removal from the United States; Chaidez’s conviction became final in 2004.[15] The Court declined to apply Padilla retroactively based on its previous holding in Teague v. Lane, 489 U.S. 288 (1989), which held that “retroactivity of our criminal procedure decisions turn on whether they are novel.”[16] Padilla changed the law for most jurisdictions by imposing new obligations on attorneys. However, because the Court considered the holding to be a new rule it refused to apply it retroactively.[17]

The Padilla holding had a major impact on New York State’s position in this area. Prior to the Supreme Court’s decision in Padilla, People v. Ford was the controlling case in New York concerning whether an attorney had the duty to inform his client of the deportation consequences before his client accepts a plea deal.[18] In Ford, the defendant was showing a gun to his girlfriend and, believing the gun to be unloaded, pulled the trigger and instantly killed her.[19]

Following counsel’s advice, Ford pled guilty to manslaughter in the second degree.[20] Since Ford was a legally documented alien from Jamaica convicted of a crime involving moral turpitude, deportation proceedings were commenced against him shortly thereafter.[21] The court held that counsel’s failure to warn Ford of the possibility of deportation did not constitute ineffective assistance of counsel.[22] Applying the Strickland standard, the court reasoned that because Ford’s counsel did not misadvise him, but instead just omitted to mention any deportation consequences, the Strickland standard was not met.[23]

Furthermore, the court concluded that the trial court only has to inform the defendant of the direct consequences of his plea prior to its entry.[24] The court generally does not have an obligation to inform the defendant of the collateral consequences of his plea.[25] Deportation was deemed by the court to be a collateral consequence of a conviction because “it is a result peculiar to the individual’s personal circumstances and one not within the control of the court system.”[26] Therefore, because the risk of deportation would be a unique concern to that particular defendant, the trial court was not obligated to inform him of the potentially life-changing impact that his conviction could have.

The Ford decision is clearly at odds with the Supreme Court’s holding in Padilla. The Court took up this issue in People v. Peque,.[27] The issue in the case was almost identical to that in Padilla, but the court considered whether a trial court must inform a criminal defendant of the deportation consequences of a criminal conviction prior to the acceptance of a plea or whether the duty rested solely on the defendant’s attorney.[28] The court held that “deportation constitutes such a substantial and unique consequence of a plea that it must be mentioned by the trial court to a defendant as a matter of fundamental fairness.”[29]

Thus, although the court was split on the issue of whether deportation could be considered a direct or collateral consequence of a guilty plea, the court held that regardless, the risk of deportation is severe enough to warrant its discussion prior to the entry of a plea.[30] The court then partially overruled part of its prior holding in Ford. In particular, Peque overruled the part of Ford holding that a trial court’s omission of any discussion of deportation at the plea proceeding does not render the defendant’s plea involuntary.[31] Thus, trial courts now have the duty to tell defendants that, if they are not United States citizens, their felony guilty pleas may expose them to deportation proceedings.[32]

The Supreme Court’s ruling in Padilla has caused significant changes to the rights of non-citizen defendants. After Padilla, non-citizen defendants who are not warned by their counsel of the deportation consequences of the plea deal have a valid ineffective assistance of counsel claim under the Sixth Amendment.[33] Thus, Padilla has put a duty on attorneys to warn their clients of the possibility of immigration consequences stemming from a criminal conviction.[34] However, the recent Supreme Court holding in Chaidez informs that the Padilla holding only applies to individuals whose convictions were finalized after the Padilla decision was handed down in 2010. Criminal defendants wishing to raise an ineffective assistance of counsel claim under the Padilla holding must have a finalized conviction after 2010.[35] The New York Court of Appeals built off the Padilla decision in Peque by mandating that trial courts have the duty to inform all defendants of the possibility of deportation prior to entering into a plea deal.[36]

The Court of Appeals was undoubtedly influenced by the significant and harsh impact that deportation has on non-citizen defendants. The U.S. Immigration and Customs Enforcement (ICE) reports that “ICE conducted 133,551 removals of individuals apprehended in the interior of the United States.”[37] Additionally, “eighty-two percent of all interior removals had been previously convicted of a crime.”[38] An ICE spokesperson said: “ICE has been vocal about the shift in our immigration enforcement strategy to focus on convicted criminals, public safety and border security and our removal numbers illustrate this[.]”[39] With deportation rates at such staggering heights, it is imperative that criminal defendants are warned of the severe consequences of their acceptance of pleas.

[1] Vincent Bonventre, Supreme Court: Highlights … (Part 7—More Criminal Law Decisions), New York Court Watcher, January 3, 2011.

[2] Padilla v. Kentucky, 559 U.S. 356, 364 (2010) (holding that counsel must inform his clients who are criminal defendants of the immigration consequences of his conviction); Chaidez v. U.S., 133 S.Ct. 1103, 1105 (2013) (holding that Padilla does not have retroactive effect); People v. Ford, 86 N.Y. 2d 397 (N.Y. 1995).

[3] Padilla, 559 U.S. at 366.

[4] Id at 365.

[5] Kevin Johnson, Court Refuses to Apply Padilla v. Kentucky retroactively, SCOTUS Blog, Feb. 21, 2013,

[6] Padilla, 559 U.S. at 359.

[7] Padilla, 559 U.S. at 359; 8 U.S.C. § 1227(a)(2) (This statute lays out the types of crimes that warrant the deportation of aliens. Among the crimes that begin deportation proceedings include: crimes of moral turpitude, aggravated felony, high speed flight, failure to register as a sex offender, virtually any drug offense: whether it was a federal or state violation, drug addiction, and certain firearm offenses.).

[8] Padilla v. Kentucky, 559 U.S. 356, 364 (2010) (quoting 253 S.W. 3d 482, 483 (K.Y. 2008)).

[9] Padilla, 559 U.S. at 359.

[10] Padilla, 559 U.S. at 366–67; Strickland v. Washington, 466 U.S. 668, 687 (1984)) (The Court set the standard for ineffective assistance of counsel claims: “First, the defendant must show that counsel’s performance was deficient . . . . Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial[.]”).

[11] Padilla, 559 U.S. at 369.

[12] 8 U.S.C. § 122; Padilla, 559 U.S. at 385.

[13] Chaidez v. U.S., 133 S.Ct. 1103, 1105 (2013).

[14] Id.

[15] Id. at 1106.

[16] Id. at 1107; Teague v. Lane, 489 U.S. 288, 310 (1989) (“[W]e now adopt Justice Harlan’s view of retroactivity for cases on collateral review. Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.”).

[17] Chaidez, 133 S.Ct. at 1110.

[18] People v. Ford, 86 N.Y.2d 397, 401 (N.Y. 1995), overruled by People v. Peque, 22 N.Y.3d 168, 176 (N.Y. 2013).

[19] Ford, 86 N.Y.2d at 402.

[20] Id.

[21] Id.

[22] Id. at 404.

[23] Id. at 405.

[24] People v. Ford, 86 N.Y.2d 397, 403 (N.Y. 1995), overruled by People v. Peque, 22 N.Y.3d 168 (N.Y. 2013).

[25] Id. (Some examples the court gives of collateral consequences are the loss of the right to vote, travel abroad, possess firearms, or civil service employment.).

[26] Id.

[27] People v. Peque, 22 N.Y.3d 168, 175 (N.Y. 2013).

[28] Id. at 175.

[29] Id. at 194.

[30] Id. at 189, 192–93, 196, 204, 207*12–13 (“[A] convicted non-citizen defendant’s actual removal from the country exacts the greatest toll on the defendant and his or her family . . . [T]he defendant loses the precious rights and opportunities available to all resident of the United States.”).

[31] Id. at 195–96.

[32] Id. at 197.

[33] Padilla v. Kentucky, 559 U.S. 356, 364–66 (2010).

[34] Id. at 374.

[35] Chaidez v. U.S., 133 S.Ct. 1103, 1105 (2013).

[36] People v. Peque, 22 N.Y.3d 168, 197.

[37] FY 2013 ICE Immigration Removals, U.S. Dep’t of Homeland Security: ICE, (Jan. 25, 2014, 12:53 PM (last visited August 22, 2014), (alterations in original).

[38] Id.

[39] Stephen Dinan, Report: Deportations Plummet in 2013, Lowest Since 2007, Wash. Times, Oct. 30, 2013. (alterations in original).

The Supreme Court and the “Ministerial Exception”: Protecting Freedom of Religion? or Permitting the Disguise of Employee Discrimination?

By Anjalee Daryani, Albany Government Law Review

On January 11, 2012, the Supreme Court issued a landmark decision concerning religious liberty.  The Court recognized for the first time a “ministerial exception,” precluding employment discrimination claims in the context of “the employment relationship between a religious institution and its ministers.”[1]  The case, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, was instituted on behalf of a teacher who was employed by a Lutheran school and had been fired for threatening to file a lawsuit for the church’s violation of the Americans with Disabilities Act (ADA).[2]  The Supreme Court acknowledged that the interference by states into a religious groups’ employment decision, would be an intrusion on the internal governance of a religious organization, and as a result would be infringing upon their rights under the Free Exercise Clause of the First Amendment.[3] Continue reading “The Supreme Court and the “Ministerial Exception”: Protecting Freedom of Religion? or Permitting the Disguise of Employee Discrimination?”

Who Is Actually Prejudiced Under Padilla?

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.  Continue reading “Who Is Actually Prejudiced Under Padilla?”

How Necessary Is the Necessity Defense? A Look at the Scott Roeder Trial and the Misuse of Mitigating Justifications

Valerie Lubanko, Government Law Review member          

            On Friday, January 29, 2010, it took jurors only thirty-seven minutes to convict Scott Roeder of first-degree murder for the death of George Tiller, a doctor who performed late term abortions.[1]  Roeder, a vehement pro-life abortion opponent, admitted during trial to planning the murder of Dr. Tiller for several years, and that he had brought a gun to the church Dr. Tiller attended on Sundays until he finally succeeded in shooting the Doctor in the head on May 31, 2009.[2]  Roeder was his only witness in his defense,[3] so it would seem that this was an open-in-shut case for the jurors to decide whether Roeder’s premeditated shooting met the elements of the crime.  However, this case has not only fueled the debate in the political and religious worlds between pro-life and pro-choice supporters, but it has also raised eyebrows in the legal world as well.  This is because Roeder tried to invoke the necessity defense to have the charges mitigated from first-degree murder down to voluntary manslaughter.[4]

            Under the Model Penal Code, the necessity defense is categorized as a “Choice of Evils” justification, in which the defendant commits a crime in order to avoid a “harm or evil” that is greater than the one being committed.[5]  Many states follow the Model Penal Code in its treatment of the necessity defense, while other states, such as New York, do not recognize the offense if the defendant is “in any way at fault for ‘occasion[ing]’ or ‘develop[ing]’ the necessity.”[6]  (The Model Penal Code presents a lower bar for the defendant, as it only denies the defense if the defendant was “reckless” or “negligent” in creating the situation that requires the defense.)[7]  Kansas[8], like many other states, has not adopted the necessity defense in any respect.[9]   

Regardless of this, Roeder still invoked the defense, stating that the he shot Dr. Tiller “[b]ecause of the fact preborn children’s lives were in imminent danger.”[10]  Sedgwick County Judge Warren Wilbert, who was the presiding judge in this case, ruled that Roeder’s necessity defense could not be used because “the harm the defendant claims to be avoiding through his . . . actions is a constitutional and legal activity, and the defendant broke the law.”[11]  However, Judge Wilbert did “leave the door open” regarding Roeder’s self-defense argument, in which claimed he was justified in his actions because he shot Dr. Tiller in defense of another (the “preborn children”).[12]  Judge Wilbert stated that he needed more evidence to rule on the matter.[13]  As it played out, the only evidence that was presented was Roeder’s own testimony that he planned and shot Dr. Tiller.  Because of this, Judge Wilber shut the evidentiary door he opened by denying Roeder’s request to give the jury an instruction to take into account Roeder’s motives in shooting Dr. Tiller, and only instructed them on the elements of first-degree murder.[14]   

            Even though Judge Wilbert eventually ruled against Roeder’s justification defense, the door he allowed open may have invited a host of arguments that will distort and pervert the law of justification as a mitigating doctrine. In fact, Harvard Law Professor Alan Dershowitz states that Roeder’s defense is “an absurd approach to the law that would open the door to the most dangerous extension of the defense of imperfect necessity.”[15]  More generally, it has been written that “[n]ecessity inherently privileges any legal violation that provides an individual or social benefit without imposing corresponding harm on another person.”[16]  If this is the case, it would seem that our legal system should not offer such an option as a defense, as the Scott Roeder’s of the world may continue to try and abuse it.    

Continue reading “How Necessary Is the Necessity Defense? A Look at the Scott Roeder Trial and the Misuse of Mitigating Justifications”