Effective Plea Bargains for Noncitizens

The Scholar Vol. 16, pp. 607-629 (2014)

24 Pages Posted: 10 Oct 2014

See all articles by Craig Estlinbaum

Craig Estlinbaum

Wadler Perches Hundl & Kerlick; South Texas College of Law

Date Written: September 2, 2014


In Padilla v. Kentucky, the United States Supreme Court held that the Sixth Amendment requires criminal defense attorneys to advise non-citizen clients regarding the deportation risks associated with a guilty plea. The Court held in that case that a defendant's guilty plea may be involuntarily made when defense counsel fails to advise the client about those deportation risks. Trial judges accepting guilty pleas from criminal defendants have a duty to confirm the defendant makes the plea voluntarily and intelligently. Judges make this determination through the plea colloquy -- a series of admonishments and questions with the pleading defendant done prior to accepting the plea. Padilla at a minimum requires trial judges to inquire whether or not the defendant is a non-citizen, and if so, whether the defendant has received the correct advice regarding the guilty plea's immigration consequences. The judge's failure to do so may result in a conviction tainted by ineffective assistance or supported by a plea not voluntarily and intelligently made.

This Article suggests trial judges should take affirmative steps prior to accepting a non-citizen's plea to reveal whether counsel has provided relevant and correct immigration advice to the defendant. Part I discusses Padilla's facts, rationale and holding, Part II discusses the requirement for a voluntary and intelligently made guilty plea in modern plea bargain jurisprudence and Part III discusses the process for obtaining post-conviction relief for Sixth Amendment violations under Strickland v. Washington's ineffective assistance standard. Part IV closes by discussing best practices for trial judges and counsel to safeguard a non-citizen's rights while developing a record that anticipates post-conviction Sixth Amendment claims.

Keywords: Immigration, Padilla, Plea Bargains, Criminal Law

JEL Classification: K14

Suggested Citation

Estlinbaum, Craig, Effective Plea Bargains for Noncitizens (September 2, 2014). The Scholar Vol. 16, pp. 607-629 (2014), Available at SSRN: https://ssrn.com/abstract=2498701

Craig Estlinbaum (Contact Author)

Wadler Perches Hundl & Kerlick ( email )

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Bay City, TX 77414
United States
979-245-5445 (Phone)

HOME PAGE: http://https://www.wphk-law.com

South Texas College of Law ( email )

PO BOX 289
Bay City, TX 77404-0289
United States

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