Proving Prejudice, Post-Padilla

7th Annual Wiley A. Branton/Howard L. J. Symposium, Collateral Consequences: Who Really Pays the Price for Criminal "Justice"?, Howard Law Journal, Vol. 54, p. 901, 2011

American University, WCL Research Paper No. 2011-17

57 Pages Posted: 27 Apr 2011 Last revised: 3 Jun 2011

See all articles by Jenny Roberts

Jenny Roberts

American University - Washington College of Law

Date Written: May 23, 2011


In Padilla v. Kentucky, the Supreme Court paved the way for significant change in the constitutionally-regulated aspects of the relationship between a criminal defendant and his lawyer, by holding that defense counsel has an affirmative obligation to warn clients about mandatory deportation consequences of a criminal conviction. In an era that has seen an explosion in “collateral” consequences of criminal convictions, the decision recognized a defendant’s right to accurate information about at least one of these harsh consequences — deportation — prior to deciding whether to plead guilty or go to trial.

Though monumental for ineffective-assistance jurisprudence, the Padilla decision may not help Mr. Padilla. He still faces deportation after living and working legally in the United States for forty years, serving in Vietnam, and raising citizen children. The Supreme Court found that defense counsel’s failure to correctly warn Mr. Padilla about deportation consequences that were so “succinct, clear, and explicit” was attorney error under prong one of the ineffective-assistance-of-counsel test. However, the courts below had not ruled on the second prong of the test, which requires a showing of prejudice. The Supreme Court thus remanded for that inquiry, and unless Mr. Padilla can prove that his lawyer’s failure to warn him about deportation prejudiced him, he will get no relief from his conviction and pending deportation.

Most courts undertake a prejudice inquiry that requires a defendant to demonstrate that, but for the attorney error, there is a reasonable probability he would have gotten a result at trial that is better than what he received with the attorney error. This Article refers to this as the “trial-outcome” prejudice approach. When the underlying conviction is based on a guilty plea, a trial-outcome approach is problematic. First, it assumes that rejection of a guilty plea has only one outcome — trial. Second, in a criminal justice system where well over ninety percent of convictions are the result of guilty pleas, prejudice inquiries do not fit neatly into such a trial-outcome analysis. These problems are illustrated in a case like Padilla, where defense counsel failed to properly warn his client about a severe “collateral” consequence of a guilty plea. Collateral consequences do not, by their very definition, factor in any way into the guilt/innocence phase of a trial. The fact finder will not hear about deportation, eviction, or loss of voting rights, which do not relate to any element of the offense and make it neither more or less likely that a defendant will prevail at trial. Thus even if defense counsel knew (and counseled her client) about the consequence, this would not lead to a decision to go to trial based on a better chance of winning.

This information, however, may well factor into defense counsel’s negotiation or sentencing advocacy. A defendant might get a different or better plea bargain if his attorney and the prosecution factor an automatic, harsh consequence like deportation into the bargaining equation. Indeed, the bargained-for sentence might actually be longer in exchange for a charge bargain that allows the defendant to avoid imposition of the collateral consequence. The prosecution or judge might also consider a severe collateral consequence in arriving at the appropriate sentence for the conviction. Finally, disclosure about a severe collateral consequence can radically alter a defendant’s risk analysis, and might lead some defendants to take a risk at trial where acquittal or conviction on a lesser charge is the only way to potentially avoid that consequence.

Defendants facing misdemeanor or low-level felony charges whose defense counsel failed to warn about a severe collateral consequence comprise the group that will most benefit from application of a broader prejudice analysis. First, the possibilities for re-negotiation, resulting in a disposition that avoids the collateral consequence, are most promising for these defendants. Second, it is this group of defendants who — if re-negotiation fails — are more likely to face the risk of trial in light of a certain, severe collateral consequence as compared to a potential, relatively small sentence of incarceration.

Prejudice prong analyses have largely failed to account for this broader picture that recognizes the realities of a non-trial based criminal justice system. Padilla says little about prejudice, which is not surprising given its decision to remand for a lower court ruling on that aspect of Mr. Padilla’s ineffective-assistance claim. However, Justice Stevens’ opinion offers an opening into a broader analysis, noting how “to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.”

This Article follows up on that opening and calls for a broader approach to the prejudice analysis in a world largely without trials. It proposes a prejudice prong analysis that acknowledges the context and complexity of plea bargaining, sentencing advocacy, and decision-making in a criminal justice system replete with severe “collateral” consequences. Under such an approach, courts would ask whether it is reasonably probable that a rational person in Mr. Padilla’s position would have rejected the plea had he known that mandatory deportation would follow. In deciding this, courts must ask whether, if the defendant had not taken the plea, it is reasonably probable that there would have been a different outcome. This can come in the traditional Strickland form of a likely successful trial outcome, but can also come in three other forms. First, counsel might re-negotiate, leading to a likely second plea structured to avoid imposition of the consequence. Second, counsel might secure a sentence that is significantly discounted to account for the harshness of the collateral consequence. Third, a defendant might make a different risk calculation in deciding whether to plead guilty or go to trial. In short, trial-outcome is only one part of a more nuanced and realistic approach.

Suggested Citation

Roberts, Jenny, Proving Prejudice, Post-Padilla (May 23, 2011). 7th Annual Wiley A. Branton/Howard L. J. Symposium, Collateral Consequences: Who Really Pays the Price for Criminal "Justice"?, Howard Law Journal, Vol. 54, p. 901, 2011, American University, WCL Research Paper No. 2011-17, Available at SSRN:

Jenny Roberts (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics