The Pressure Is On — Criminal Defense Counsel Strategies after Padilla v. Kentucky

Abstract

The Supreme Court’s message to criminal defense attorneys in Padilla v. Kentucky was clear: when there is a risk of deportation, defense counsel has a constitutional duty to inform an immigrant defendant of the potential for deportation or adverse immigration consequences prior to pleading guilty. In my view, this constitutional duty places tremendous pressure on defense counsel to do more than advise, because once advised, the client very naturally may want to know what options are available other than going to trial. Rather than simply focusing on how to minimize the time of incarceration for the client under a particular plea agreement, competent counsel has to figure out how to minimize the immigration ramifications. As I discuss in this Article, the efforts range from determining whether the client might actually be a citizen, to seeking a sentence that would fall outside the realm of an aggravated felony, to seeking a plea to an alternative charge that does not involve moral turpitude or firearms, to making sure that the sentencing plea or colloquy is silent about certain facts.

These efforts are demanding. They entail resourceful, intricate knowledge of the relevant criminal codes. They also require resourceful, intricate knowledge of the criminal grounds of removal and up-to- date research on what classifications of convictions can or cannot lead to removal.

Keywords: immigration, deportation, criminal defense, defense counsel, adverse immigration consequence, incarceration, citizen, citizenship, moral turpitude, removal