25 Pages Posted: 29 Apr 2012 Last revised: 10 Jan 2014
Date Written: 2011
The Supreme Court’s holding in Padilla v. Kentucky, that defense attorneys must provide their clients with adequate immigration advice concerning the potential impact of a guilty plea, was hailed by many commentators and advocates as a decision that would transform the landscape of criminal justice and the rights of the accused. Now, two years later, this Article explores whether Padilla in practice matches the lofty rhetoric it inspired.
First, the Article examines the underlying causes of the ineffective assistance of counsel addressed by the Court in Padilla, and distinguishes between individual attorney and structural culpability. The Article questions whether Padilla will change the behavior of individual attorneys who had been violating what the Court found to be longstanding and clear prescriptions requiring defense counsel to provide adequate immigration impact advice, and also suggests that Padilla will have little actual impact unless well-documented resource and systemic deficiencies in Public Defender offices are addressed.
The Article concludes by examining ways to measure Padilla’s impact and argues that Padilla should result in fewer guilty pleas, especially at the accused’s initial court appearance. Viewed through this lens, Padilla could end the practice known widely as 'meet, greet and plead,' as an attorney could not possibly fulfill Padilla’s mandate after just having met her client and not yet fully knowing her client’s immigration status or the legal impact of a guilty plea on that person’s particular situation. The Article concludes that the potential for Padilla to have a truly transformative impact is in its impact on client counseling – what defense attorneys say to their clients, and how and when they say it.
Keywords: Supreme Court, immigration, court ruling, defense, public defender, Padilla, collateral consequences,
Suggested Citation: Suggested Citation
Zeidman, Steven, Padilla v. Kentucky: Sound and Fury, or Transformative Impact (2011). Fordham Urban Law Journal, Vol. 39, No. 203, 2011. Available at SSRN: https://ssrn.com/abstract=2044842