Thursday, July 21, 2011
Margaret Colgate Love has posted Collateral Consequences after Padilla v. Kentucky: From Punishment to Regulation (St. Louis Public Law Review, Vol. 30, 2011) on SSRN. Here is the abstract:
This Article analyzes the scope of Padilla v. Kentucky, concluding that its logic extends beyond deportation to many other severe and certain consequences of conviction that are imposed by statute or regulation rather than by the sentencing court. It proposes a set of reforms that would limit the disruptive effect of these co-called “collateral consequences” on the guilty plea process, and make a defense lawyer’s job easier. Part I describes a case currently pending in the Pennsylvania Supreme Court that may yield some important clues about how broadly the Padilla doctrine will be applied to status-generated consequences other than deportation. At issue in Commonwealth v. Abraham is whether a lawyer should have warned his client, a retired public school teacher, that pleading guilty to a misdemeanor sex offense would result in the permanent forfeiture of his vested pension benefits. Part II looks at the collateral consequences doctrine as applied by the courts before Padilla to demonstrate its weakness in the Sixth Amendment context. It then examines the Padilla decision itself and its progeny to date, and proposes a test for determining when a lawyer should be constitutionally required to notify a client about a particular statutory or regulatory consequence of conviction. It concludes that the pension forfeiture at issue in Abraham meets that test. Part III proposes three non-constitutional reforms “to complete Padilla’s unfinished business” where the substance of plea agreements is concerned. The goal of these reforms is to minimize the extent to which harsh categorical sanctions destabilize the plea process on which the justice system has come to depend. Using principles set forth in the ABA Criminal Justice Standards, the article recommends that jurisdictions should 1) compile and disseminate information about collateral sanctions; 2) eliminate those sanctions that are disproportionately severe or bear only a tenuous relationship to the crime; and 3) provide timely and effective ways to avoid or mitigate the sanctions that remain. These reforms will not only shore up the plea system, they will propel a move away from a punitive model of collateral consequences that is frequently self-defeating and unfair, to one that can be justified in both moral and utilitarian terms.