Saturday, June 14, 2014
Immigration Article of the Day: 'Crimmigration' and the Right to Counsel at the Border between Civil and Criminal Proceedings by Christopher N. Lasch
'Crimmigration' and the Right to Counsel at the Border between Civil and Criminal Proceedings by Christopber N. Lasch,University of Denver Sturm College of Law
Abstract: The Supreme Court recently discovered, in its 2010 decision in Padilla v. Kentucky, what I have termed the “right to effective crimmigration counsel” — the right to effective advice concerning the potential immigration consequences of a criminal conviction. The decision was grounded in the Court’s recognition of a central reality of modern immigration law, the intertwining of the criminal and immigration law systems that scholars have labeled “crimmigration.” But Padilla stands somewhat uneasily at the border between civil and criminal proceedings. It is a criminal decision about the scope of the Sixth Amendment right to counsel. But Padilla is clearly more than a criminal decision, as it is rooted in the criminal justice system’s connection to the immigration justice system, which the Supreme Court has insisted (even in Padilla) is a civil regime. In these pages, I attempt to map the future of this unusual decision.
The questions I hope to answer here are these: Does the Padilla rule adequately serve the constitutional values that the Padilla decision recognizes? And if not, how should we move beyond Padilla to a rule or set of rules that will promote those constitutional values?