Restructuring Public Defense after Padilla
74 Stanford Law Review 1 (2022)
87 Pages Posted: 8 Feb 2022 Last revised: 16 Mar 2022
Date Written: January 2022
Abstract
In the 2010 landmark decision Padilla v. Kentucky, the Supreme Court held that the Sixth Amendment right to counsel demands that criminal defense attorneys inform their clients of adverse immigration consequences that may flow from a guilty plea. Although over a decade has passed since Padilla, astonishingly little is known about how public defense systems have incorporated this watershed decision on the ground. This Article presents the first empirical study of representation by public defenders in the post-Padilla era. By researching Padilla’s implementation in California—the state with the largest immigrant population in the nation and a longstanding commitment to public defense—this study shows how immigration expertise has been provided to indigent defendants and identifies weaknesses with the current delivery system.
Our results reveal a patchwork system in which each county in California has created its own approach to immigration advising. Exhibiting efforts at compliance, most large counties with institutional public defender offices have embedded immigration experts within their offices and reshaped attorney understanding of adequate pre-plea advisals and plea-bargaining practices. At the same time, however, many other counties have languished: They have not hired immigration experts, developed county protocols for immigration advising, or implemented immigration law training for their attorneys who accept indigent court appointments. The urgency to create a workable Padilla delivery system is particularly acute in California’s small and rural counties, which generally have not established an institutional public defender office and instead have relied on a county funded contract system for appointing defense counsel. The lack of state funding for public defense in California contributes to these problems, as does the fact that some county defender systems have been slow to restructure their existing defense services to strengthen their immigration advising and defense. Based on these findings, this Article concludes by offering policy recommendations for how to improve the representation of immigrants in California. These insights are also relevant to other public defender systems throughout the country that are struggling with similar issues.
Keywords: public defender, Padilla v. Kentucky, Sixth Amendment, crimmigration, deportation defense, collateral consequences
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