Strickland-Lite: Padilla's Two-Tiered Duty for Noncitizens

Abstract

The quarter-century-old ineffective assistance of counsel framework announced in Strickland v. Washington recognizes a Sixth Amendment duty to investigate the law and facts underlying a criminal defendant’s legal predicament. In Padilla v. Kentucky the Supreme Court of the United States for the first time extended the Strickland analysis to cover the right of noncitizen defendants to receive information about the immigration consequences of a conviction. Faced with the competing considerations of providing noncitizen criminal defendants with critical information about immigration consequences, on the one hand, and the burden on defense attorneys of researching immigration law, on the other hand, this Article argues that the Court split the difference and invented a “Strickland-lite” duty. Under Strickland-lite, the Court failed to require that criminal defense attorneys investigate the law and facts relevant to immigration consequences as fully as it has long required attorneys to do when investigating other aspects of a criminal case, including even immigration law provisions central to guilt or punishment. This Article locates Padilla within a quarter-century of Strickland analyses and contends that the new Strickland-lite approach conflicts with Strickland’s mandate and fails to remedy the problem of inaccurate advice for noncitizen criminal defendants that Padilla purports to remedy.

Keywords: immigration, criminal law, criminal procedure, Padilla v. Kentucky, Sixth Amendment, right to counsel, ineffective assistance of counsel, crimmigration