Friday, July 16, 2010
Gabriel J. Chin (pictured) and Margaret Colgate Love (University of Arizona James E. Rogers College of Law and Law Office of Margaret Love) have posted Status as Punishment: A Critical Guide to Padilla v. Kentucky (Criminal Justice, Forthcoming) on SSRN. Here is the abstract:
There are only a handful of Supreme Court decisions in the past 50 years that can be said to have transformed the operation of the criminal justice system. Padilla v. Kentucky may be such a case. In Padilla, the Court ruled that criminal defense lawyers must advise their non-citizen clients considering a guilty plea that they are likely to be deported as a result. It is the first time the Court extended the Sixth Amendment right to counsel to a consequence of conviction that is not part of the court-imposed punishment. The decision represents an important first step toward imposing constitutional discipline on the plea bargaining process. As a practical matter, the decision will affect how all participants in a criminal case conduct themselves, not just defense counsel.
Padilla offers important protections for non-citizens who are in the criminal justice system. But it has broader implications. In requiring consideration of indirect as well as direct consequences of conviction in connection with bargaining over the appropriate penalty, the decision implicates the concept of truth in sentencing itself. Yet it is less surprising that the Court should extend the right to counsel to collateral consequences at the plea stage, than that it took so long to do so. This essay places Padilla in the larger framework of modern criminal justice to understand its justifications and implications in policy terms. It argues that the logic of the Padilla decision is not confined to deportation but extends to other severe and certain collateral consequences of conviction. It reviews the reasons given for treating collateral consequences differently from other important consequences of conviction, and concludes that there is no principled basis for that distinction. Imposing collateral consequences has become an increasingly important function of the criminal justice system, so that they have to all intents and purposes become part and parcel of the criminal case. Accordingly, an expanded duty of counsel represents sound public policy, based on considerations of safety and efficiency, judicial integrity, and fairness to individuals. Finally, the essay describes efforts underway by the ABA and the Uniform Law Commission to make it possible for criminal defense attorneys to offer adequate advice about collateral consequences without unreasonable expense or delay.