When State Courts Meet Padilla: A Concerted Effort is Needed to Bring State Courts Up to Speed on Crime-Based Immigration Law Provisions

Abstract

Padilla v. Kentucky’s recognition of deportation consequences as a component of the Sixth Amendment effective assistance of counsel guarantee promised dramatic impact on criminal proceedings involving noncitizen defendants. Realizing this promise depends on courts’ ability to require defense attorneys to provide accurate advice about the deportation consequences of a conviction. Because state courts decide most ineffective assistance of counsel claims, a review of their treatment of Padilla-based claims offers an insightful glimpse into this decision’s impact on criminal representation of noncitizen defendants. This article examines state court decisions from the first six months after Padilla was issued and concludes that state courts’ lack of familiarity with immigration law has manifested itself in a concerning failure to grant Padilla-based relief when attorneys have inaccurately advised defendants about the prospect of deportation.

Keywords: immigration, criminal procedure, Padilla v. Kentucky, Strickland v. Washington, right to counsel, effective assistance of counsel, Sixth Amendment, crimmigration