Friday, September 7, 2012
J. McGregor Smyth Jr. has posted 'Collateral' No More — The Practical Imperative for Holistic Defense in a Post-Padilla World...Or, How to Achieve Consistently Better Results for Clients (St. Louis University Public Law Review, Vol. 31, p. 139, 2011) on SSRN. Here is the abstract:
The Supreme Court’s seminal decision in Padilla v. Kentucky capped over a decade of increasing focus on the so-called “collateral” consequences of criminal proceedings. The Court held that to provide effective assistance of counsel, a criminal defense attorney has an affirmative duty to give specific, accurate advice to noncitizen clients of the deportation risk of potential pleas. The majority’s analysis in fact reaches far beyond advice on immigration penalties, extending to any and all serious and likely penalties intimately related to the criminal charges.
The most powerful legacy of the Padilla decision, however, is not its legal analysis of the duties of defense counsel, or even its repudiation of the legal theory of “collateral” consequences, at least in the context of the Sixth Amendment. The key to understanding the decision’s impact is much more basic — Jose Padilla is a man, not a case. Padilla reminds us of the advocate’s most important and effective strategy: humanizing the person he or she represents.
Padilla did not change our clients’ needs. Neither did it change the disturbing, lifetime impact of a single criminal charge. What it gave us is leverage — a powerful new constitutional leverage for promoting institutional change, increasing resources, and improving individual advocacy. A previous article (http://ssrn.com/abstract=2002260) laid out the first detailed legal analysis of the application of Padilla to a broad set of penalties beyond deportation. This Article serves as an advocacy companion, responding to the “embarrassing call to action” posed by Justice Alito’s recognition of widespread practice deficiencies. In short, this Article outlines a framework for how defenders can and should use Padilla as leverage to get better results.
Any discussion of changing defense practices must squarely address why defense attorneys must approach their work in a new way and how they can do it in our high-volume reality. Defenders must know that this approach works for clients, works for their practice, and is feasible. Part I discusses the constitutional duties mandated by Padilla v. Kentucky and how embracing its most important lesson about great advocacy will drive and inspire better defense practice. Recognizing that constitutional mandates never sufficiently motivate change, Part II addresses the why, outlining the devastating impact of criminal charges on families and the measurable, improved outcomes that result from integrating knowledge of this damage into every stage of defense strategy.
Part III tackles the difficult question of how. Building on nearly fifteen years of proven results from an integrated model of defense services, this section details strategies for using knowledge of clients and these “collateral” consequences to obtain better outcomes in criminal cases from bail to plea to sentencing, manage risk, obtain more equitable discovery, and build better relationships with clients. Our high-volume criminal justice system, defined by assembly-line pleas to minor offenses, tries its best to reduce people to defendants and cases and avoid any acknowledgment of the true damage it inflicts daily. The Supreme Court's reminder that the client must be the central focus of defense advocacy lays the foundation for a more robust, holistic vision of the defense function. Part IV discusses the imperative for holistic defense in a post-Padilla world and outlines one proven model.