Why Padilla Doesn’t Matter (Much)

Abstract

The U.S. Supreme Court’s decision in Padilla v. Kentucky might herald a breakthrough in the quality of representation provided to immigrants charged with crimes, and more broadly an advance in the Court’s recognition of the role both of plea bargaining in criminal adjudication and of the severe collateral consequences often triggered by convictions for citizen as well as alien defendants. There are good reasons to suspect, however that Padilla’s practical impact will be modest; for many non-citizen criminal defendants, including probably Jose Padilla himself, its impact will be non-existent. The Padilla holding seeks to ensure that defense lawyers are aware of severe collateral consequences that attach to convictions, in order both to inform their clients of those consequences to inform plea bargain negotiations among attorneys. The Court speculated that attorneys then may be able to craft alternative criminal or immigration-law outcomes through creative bargains. But the problem for many non-citizen defendants like Mr. Padilla is not simply - and not primarily - their lawyers’ unfamiliarity with immigration law; it is the content of the substantive criminal law, of sentencing law, of the sources of non-criminal law that define collateral consequences and, finally, of limited procedural possibilities for avoiding or mitigating those consequences. None of that law changes with Padilla. As a result, defense lawyers’ (and even prosecutors’) abilities to negotiate around criminal law or immigration law, and to achieve more favorable or just outcomes for defendants are not notably improved. Adding to those limitations, the pervasive inadequacies of indigent criminal defense, especially in state courts, are unaffected by Padilla, further diminishing the hope that attorneys’ awareness of collateral consequences will improve client representation and case outcomes.

Keywords: criminal adjudication, indigent defense, right to counsel, deportation, collateral consequences, Sixth Amendment, plea bargaining, Strickland v. Washington