The Collateral Consequences of Padilla V. Kentucky: Is Forgiveness Now Constitutionally Required?

Abstract

People who commit a crime and are brought before a court to be sentenced expect to face a prison term or at least probation, and perhaps a fine. They may expect to experience a degree of social opprobrium, the so-called “stigma of conviction.” They surely understand that having a criminal record is not career-enhancing. But they also probably think that at some point they will be able to pay their debt to society and return to its good graces. They are reinforced in their belief in the possibility of redemption by periodic reminders from our elected leaders: President George W. Bush called America “the land of second chance,” and President Obama famously called to congratulate the Philadelphia Eagles for letting Michael Vick walk directly from prison back into the team’s starting lineup.

But the reality for people of ordinary abilities is very different. For them, the so-called “collateral” consequences of conviction are numerous, severe, and very hard to mitigate. Moreover, because conviction-based dis-qualifications are generally imposed by statute or regulation rather than by a judge in open court, criminal defendants usually have no idea what is in store for them. While conventionally labeled as “civil,” collateral consequences are increasingly understood and experienced as criminal punishment, and never-ending punishment at that. In Padilla v. Kentucky, the Supreme Court suggested that these disproportionate, rigid, and largely secret penalties have constitutional limits. At one level, Padilla is about a lawyer’s duty to warn a client considering a guilty plea about the likelihood of deportation. At another, Padilla sends a shot across the bow of a justice system whose effects are increasingly felt in contexts over which courts have no control. Padilla gives new force to an argument that criminal offenders are entitled to a chance at forgiveness.