Ignorance is Effectively Bliss: Collateral Consequences of Criminal Convictions, Silence and Misinformation in the Guilty Plea Process

Abstract:     
In the 2009-2010 term, the United States Supreme Court will decide if it matters whether a criminal defense lawyer correctly counsels a client about the fact that the client faces deportation as a result of a guilty plea. Under prevailing constitutional norms in almost every jurisdiction, a lawyer does not have a duty to tell her client about many serious but “collateral” consequences of a guilty plea. Yet, in every jurisdiction that has considered the issue, that very same lawyer will run afoul of her duties if she affirmatively misrepresents a collateral consequence. Every jurisdiction, that is, except Kentucky, where the state Supreme Court recently held that when there is no duty to warn about a consequence because it is collateral, misadvice about that same consequence is not a constitutional violation.

The collision of the collateral consequences rule, which imposes no duty to warn, and the affirmative misadvice exception, which imposes a duty to give accurate advice where a lawyer chooses to warn, leads to a perverse incentive structure that signals to defense lawyers (as well as prosecutors and the judge) that it is safest to say nothing at all about “collateral” matters. The Kentucky approach that the Supreme Court will review is equally troubling; it allows false information with no sanction or remedy. A cluttered and contradictory jurisprudence of informational rights in the guilty plea process sits at this intersection of the collateral consequences rule and affirmative misadvice exception.

So-called collateral consequences often overshadow the direct penal sentences in criminal cases. In addition to deportation, courts categorize many other severe consequences as collateral, including involuntary civil commitment, sex offender registration, and loss of the right to vote, obtain professional licenses, and receive public housing and benefits. These consequences touch upon every important area of a convicted person’s life, for the rest of his life. They also matter enormously in the United States, which has more than 600,000 individuals exiting the prison system and millions more getting criminal records each year. They enter a society that is struggling to find ways to integrate them despite these considerable obstacles.

The constitutional rule has not caught up to the current reality of the effect of these consequences on defendants, their families, and their communities. The Supreme Court has the opportunity to overcome the mythical divide between direct and collateral consequences and to protect the constitutional and ethical values which underlie a defendant’s right to decide whether to plead guilty based on full knowledge of material consequences. The Court will consider important issues of professional responsibility, ethics, transparency, and the right to information in the guilty plea process. This Article exposes the problems with the majority and Kentucky approaches. It argues that only a constitutional mandate of full information about serious consequences of guilty pleas will avoid the problematic incentive structures we have now.

Number of Pages in PDF File: 76

Accepted Paper Series