Ineffective Assistance of Counsel: Deportation Consequences of Guilty Pleas

Congressional research reportApr 12, 2010

Ask Donna

What actually matters in this document.

Text

Ineffective Assistance of Counsel:

Deportation Consequences of Guilty Pleas

name redacted

Specialist in American Public Law

April 12, 2010

Congressional Research Service

7-....

www.crs.gov

R41190

CRS Report for Congress

Prepared for Members and Committees of Congress

Ineffective Assistance of Counsel: Deportation Consequences of Guilty Pleas

Summary

The Sixth Amendment entitles an accused in a criminal prosecution to “Assistance of Counsel for

his defense.” This right to counsel implies a right to “effective assistance.” Effective assistance

has dimensions of both breadth and depth: breadth in the sense of what considerations beyond

those immediately at issue in the prosecution should be taken into account, so-called collateral

consequences; depth in the sense of what professional standards pertain. In Padilla v. Kentucky,

the Supreme Court held that “ineffective assistance” standards require informing a noncitizen

defendant on possible deportation when advising on whether to accept a guilty plea. Forced

removal through deportation is a civil proceeding separate and apart from criminal prosecution.

The test for deficient representation for Sixth Amendment purposes is two-pronged. First, was the

attorney’s performance reasonable under prevailing professional norms? Second, was the

defendant prejudiced by the attorney’s shortcomings? As to the first prong, the Padilla Court

emphasized the unique nature of deportation. Criminal courts do not decide whether to deport a

noncitizen defendant; rather, federal immigration authorities do. Nevertheless, the Court

recognized that deportation can have enormous repercussions for a noncitizen and the

noncitizen’s family. The Court further observed that Congress curtailed the historic, though

indirect, ability of criminal judges to forestall a convict’s deportation, at the same time it

dramatically expanded the range of crimes that can lead to deportation.

The Court cited the hardship of deportation and its increasingly automatic application in prelude

to discussing whether Padilla’s attorney fell short of prevailing practice. The lawyer had

volunteered that Padilla did not have to worry about deportation in considering whether to plead

guilty to marijuana trafficking because he had legally resided in the United States for over 40

years. Yet it was not the volunteering of mistaken advice that was critical to the Court. According

to the Court, silence was not an adequate option. Instead, professional norms, as reflected in

standards of the American Bar Association, criminal defense organizations, and the like, pointed

to an affirmative duty to inform on the risk of deportation.

How far must an attorney go in advising a defendant? The five-Justice majority found

immigration law to be “succinct, clear, and explicit” in Padilla’s case, and held that in this

circumstance defense counsel must correctly advise on the high likelihood of deportation. In less

straightforward cases, the majority opined, it might suffice to advise that the pending charges

carried a risk of deportation. The two concurring Justices found immigration law to be so

complex that defense counsel need only warn of a general risk of deportation in all cases and

suggest that the defendant see a specialist for further advice.

Deportation is commonly a risk for noncitizen criminal defendants, but there are other possible

immigration consequences of a criminal conviction. Also, all defendants can face other collateral

consequences, from loss of a business license to loss of the right to vote to loss of certain public

benefits. A number of factors might bear on a defendant’s decision to plead guilty, but the Padilla

Court carefully limited its holding to advice on deportation. Also left open by Padilla is guidance

on when failing to advise on deportation is sufficiently prejudicial to a defendant to warrant

nullifying a guilty plea. The Court remanded this issue to lower courts for further consideration.

Congressional Research Service

Ineffective Assistance of Counsel: Deportation Consequences of Guilty Pleas

Contents

Noncitizens and Guilty Pleas.......................................................................................................1

The Case of Jose Padilla..............................................................................................................2

Constitutional Setting..................................................................................................................3

Supreme Court’s Decision in Padilla v. Kentucky ........................................................................5

Outstanding Issues ......................................................................................................................8

Prejudice to the Defendant ....................................................................................................8

Applicability of the “Direct Consequences” Limitation .........................................................9

Role of the Legislatures and the Courts ............................................................................... 10

Contacts

Author Contact Information ...................................................................................................... 11

Congressional Research Service

Ineffective Assistance of Counsel: Deportation Consequences of Guilty Pleas

mposing criminal punishment is the province of the criminal justice system, but how cases are

resolved within that system inevitably can affect rights and benefits beyond it. Congress and

state legislatures often attach additional legal consequences to criminal activity. At times,

these consequences may be at least as significant as a potential fine or incarceration. Deportation

of a noncitizen (a term synonymous with “alien”) under federal immigration law is a case in

point. 1 Nevertheless, a noncitizen charged with a crime may not be fully aware of what is at stake

before going to trial or deciding to plead guilty to a particular offense.

This report discusses the extent of deportation-related advice a noncitizen defendant is

constitutionally owed in deciding whether to plead guilty to a particular crime. Two possible

doctrinal bases for a right to be advised are the Due Process requirement that a guilty plea be

voluntary and the Sixth Amendment right to effective assistance of counsel. The Supreme Court

had not found that either basis required advising noncitizen defendants on deportation, however,

and a distinction in the Court’s jurisprudence between direct and collateral consequences of

criminal conviction potentially precluded finding any constitutional right. Then, in Padilla v.

Kentucky,2 the Court found a right to be advised of possible deportation grounded in the Sixth

Amendment right to effective assistance of counsel. The holding in Padilla is discussed below, as

are its possible implications. Also mentioned are steps that have been taken by courts and

legislatures, constitutional requirements aside, to integrate consideration of immigration

consequences into the criminal process.

Noncitizens and Guilty Pleas

When an accused is a noncitizen, one especially momentous result of prosecution is possible

deportation.3 For decades now, Congress has placed priority on the removal of criminal aliens

from the United States. One result of this effort has been a significant statutory expansion of the

list of felonies and other offenses (especially those types of federal and state crimes categorized

as aggravated felonies under the Immigration and Nationality Act of 1952 (INA), as amended)4

that lead to swift and increasingly certain deportation following criminal imprisonment. If a

noncitizen accused of a serious crime is to avert deportation, therefore, the primary legal arena for

attention has become the criminal justice system rather than the immigration adjudication system,

even though the latter formally adjudicates and issues removal orders.

Two things should be kept in mind in this context. First, the United States has a large noncitizen

population. Roughly 25.5 million people residing in the United States in 2008, or around 8½% of

Deportation is the expulsion of a noncitizen from within the United States. Congress establishes grounds for

deportation and the administrative procedures for implementing them in the Immigration and Nationality Act of 1952

(INA), as amended. 8 U.S.C. §§ 1101 et seq. Under a 1996 amendment, deportation under the INA is now a

subcategory of removal. In this report the two terms are used synonymously.

559 U.S. ___, No. 08-651, slip op. (March 31, 2010).

The Supreme Court often has described deportation in dire terms. For example, in Ng Fung Ho v. White, the Court

stated that deportation risked potential “loss of both property and life, or of all that makes life worth living.” 259 U.S.

276, 284 (1922). Another case calls deportation “the equivalent of banishment.” Fong Haw Tan v. Phelan, 333 U.S. 6,

10 (1948). Other cases are to similar effect.

8 U.S.C. §§ 1101 et seq. The INA sets out broad, overlapping categories of potentially deportable offenses and

additionally designates specific crimes as potentially deportable. INA § 237(a)(2), 8 U.S.C. § 1227(a)(2). Applying this

detailed array is further complicated by the INA’s use of terms, “crime involving moral turpitude,” for example, that do

not precisely correspond to terms used in federal or state criminal law.

Congressional Research Service

Ineffective Assistance of Counsel: Deportation Consequences of Guilty Pleas

the population, were noncitizens, according to one leading authority. 5 The exact number of

noncitizens who are charged with a crime is not known, but it would appear that many thousand

noncitizens pass through criminal courts each year. During FY2008, over 97,000 criminal aliens

were removed from the United States, over one-third of these for drug-related offenses. 6 During

the same period, the Criminal Alien Program, a cooperative federal-state law enforcement effort,

issued 221,085 charging documents, the first step in removal proceedings, against criminal aliens

incarcerated in federal, state, or local facilities. 7

The second observation concerns how criminal cases are in fact resolved. The criminal grounds

for removal are premised on a “conviction,” and in the United States convictions most commonly

take the form of guilty pleas. Guilty pleas are the mainstay of the American criminal justice

system. In 2004, they comprised 95% of state felony convictions, 96% of state felony drug

convictions. In federal courts, 96% of the defendants whose cases were resolved through

conviction in the year beginning June 2007 pleaded guilty. 8 Thus, one commentator has observed

the following about the modern role of a criminal defense lawyer:

The most important service that criminal defense lawyers perform for their clients is not

dramatic cross-examination of prosecution witnesses or persuasive closing arguments to the

jury; it is advising clients whether to plead guilty and on what terms. More than ninety

percent of dispositions on the merits of criminal prosecutions are convictions, and more that

ninety percent of convictions result from guilty pleas. Accordingly, the accuracy and fairness

of the criminal justice system depend principally on the actions of defense lawyers,

prosecutors, and judges at the guilty plea stage. In Hill v. Lockhart,9 the Supreme Court

recognized the significance of counsel at the pleading stage, holding that the Sixth

Amendment grants clients the right to effective assistance of counsel when pleading guilty. 10

The Case of Jose Padilla

Jose Padilla had been a legal permanent resident of the United States when he was pulled over by

Kentucky authorities at a weigh station for failing to have a weight and distance number on his

truck. A subsequent search of the truck revealed approximately 1,000 pounds of marijuana, and

Padilla was charged with drug trafficking. He pleaded guilty to three charges, trafficking in more

than five pounds of marijuana among them.

Two years later, in August 2004, Padilla filed a petition with the Kentucky courts alleging

ineffective assistance of counsel. He asserted that his attorney had failed to adequately investigate

and advise him on the possible immigration consequences of his guilty plea, but instead,

Jeffrey S. Passel & D’Vera Cohn, A Portrait of Unauthorized Immigrants in the United States (Pew Hispanic Center

April 14, 2009).

Department of Homeland Security, Office of Immigration Statistics, Annual Report, Immigration Enforcement

Actions: 2008 at Table 4 (July 2009).

Id. at 4.

Brief of Amici Curiae States of Louisiana, et al. at 9, Padilla v. Kentucky, No. 08-651 (U.S. Supreme Ct.) and

authorities cited therein. This brief was submitted by twenty-seven states and the National District Attorneys

Association.

474 U.S. 52 (1985).

Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87

CORNELL L. REV. 697, 698 (2002).

Congressional Research Service

Ineffective Assistance of Counsel: Deportation Consequences of Guilty Pleas

according to Padilla, said that Padilla “did not have to worry about [his] immigration status since

he had been in the country so long.” Padilla further claimed that he would not have pleaded guilty

as he did, had he known of the possibility of deportation.

The Hardin County Circuit Court ruled against Padilla, holding that advice (or failure to advise)

on deportation cannot give rise to a claim of ineffective assistance of counsel in a criminal case.

The Kentucky Court of Appeals reversed, finding further proceedings were warranted by the

allegation that affirmative misadvice had been given. The Kentucky Supreme Court reversed the

Court of Appeals, concluding that neither a failure to advise nor misadvice on deportation could

support an ineffective assistance of counsel claim. Padilla submitted a petition for a writ of

certiorari to the United States Supreme Court, which granted the writ and heard oral argument

October 13, 2009.

Constitutional Setting

It was evident in the pleadings and oral argument that the Court’s decision in Padilla depended on

what it conceived to be the reach of defense counsel’s obligations under the Constitution. Must

defense counsel ever advise a client about matters not immediately before the criminal court as a

predicate to the client pleading guilty? If so, what breadth of expertise is expected? Is there a

distinction between failing to advise a client and misinforming a client?

The Sixth Amendment includes an express right to counsel among other procedural protections it

confers to criminal defendants:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by

an impartial jury of the State and district wherein the crime shall have been committed ... and

to be informed of the nature and cause of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense. (emphasis added)

The Court has long held that “Assistance of Counsel” meant effective assistance of counsel,11 but

it had not explored what “defense” entailed. The text of the Sixth Amendment suggests the

assistance due under it is discrete in scope. The Amendment pertains in a “criminal prosecution,”

the process by which the government moves against a person before a court of law for specified

criminal acts. Certainly, other rights afforded an accused in the Amendment—speedy trial, jury

trial, knowledge of the accusation, confrontation of witnesses, compulsory process—all address

the fairness and integrity of this adversarial effort to convict and impose punishment.

The lineage of this principle began with Powell v. Alabama, 287 U.S. 45 (1932).

Congressional Research Service

Ineffective Assistance of Counsel: Deportation Consequences of Guilty Pleas

Though the Supreme Court had not set a clear precedent,12 the prevailing test for “ineffective

assistance of counsel” in plea cases appeared to many to be bound by a tight focus on criminal

jeopardy alone.13 The critical distinction was between “direct” and “collateral” consequences of

prosecution. In the context of guilty pleas, the most apparent direct consequence is the

punishment that can be imposed, but even here, it may be uncertain how far the duty to advise

extends beyond potential maximum sentences, and possibly mandatory minimums, to more

nuanced matters involving possible parole and probation.14 Collateral consequences, by contrast,

are more diverse, and can include, in addition to possible conditions on how sentences may be

served, such eventualities as loss of the right to vote, loss of a passport, loss of the right to possess

firearms, loss of public employment or public benefits, loss of professional or business licenses,

possible civil liability, possible enhanced punishment for future crimes, and an obligation to

were regarded as collateral, because they were not immediately imposed as punishment by a

convicting court.

The direct versus collateral consequence distinction made in many “ineffective assistance” cases

under the Sixth Amendment would appear to have migrated from case law on the requirement of

a court to inquire into whether a guilty plea is voluntary for purposes of meeting a defendant’s

due process rights under the Fifth and Fourteenth Amendments.16 Those cases drew a line past

which the court was not obligated to inquire into a defendant’s motives for pleading guilty or the

defendant’s expectations on how a sentence would be carried out. Absent improper coercion or

deceit, a knowing “plea of guilty entered by one fully aware of the direct consequences, including

the actual value of any commitment made to him by the court, prosecutor or his own counsel,

must stand....”17

Though “ineffective assistance” analysis in plea cases might have appeared to have become

tethered to the voluntariness test applied in due process cases, the Court did develop distinct

The leading Supreme Court decision on ineffective assistance and guilty pleas is Hill v. Lockhart. 474 U.S. 52

(1985). Hill plausibly may be read as eschewing a direct v. collateral consequence test for Sixth Amendment claims.

See 474 U.S. at 56, where the Court describes parole eligibility, the basis for the ineffective assistance claim in the

case, as being collateral—“We have never held that the United States Constitution requires the State to furnish a

defendant with information about parole eligibility in order for the defendant’s plea of guilty to be voluntary.... ”—yet

proceeds to analyze the claim under the separate Strickland standard, described below. At minimum, Hill would not

appear to have expressly adopted a “direct v. collateral” test. See Transcript of Oral Argument Before the Supreme

Court at 42, 50, Padilla v. Kentucky, No. 08-651 (Oct. 13, 2009).

This view was dispositive in the opinion of the Supreme Court of Kentucky in Padilla’s case (Commonwealth v.

Padilla, 253 S.W. 3d 482 (Ky. 2008)), and the U.S. Supreme Court’s opinion in Padilla observed that the “Kentucky

high court is far from alone in this view.” Padilla v. Kentucky, 559 U.S. ___, No. 08-651, slip op. at 7 & n. 9 (March

31, 2010). See also Fuartado v. Commonwealth, 170 S.W. 3d 384 (Ky. 2005). A leading commentary that argued for a

broad interpretation of counsel’s constitutional responsibilities in a plea setting nevertheless observed: “[A]ll courts that

have considered the issue have held that defense lawyers must explain the direct consequences of a plea, such as length

of imprisonment and amount of fine, but need not explain ‘collateral consequences,’ such as revocation of probation or

parole, that sentences may be served consecutively rather than concurrently, or that the plea may result in deportation.”

Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87

CORNELL L. REV. 697, 703 (2002).

Wayne R. LaFave et al., Criminal Procedure § 21.4(d) (3d ed. 2007).

Id.

See Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty

Pleas, 87 CORNELL L. REV. 697, 703-708 (2002).

Brady v. United States, 397 U.S. 742, 755 (1970) (quoting Shelton v. United States, 246 F. 2d 571, 572 n.2 (5th Cir.

1957)).

Congressional Research Service

Ineffective Assistance of Counsel: Deportation Consequences of Guilty Pleas

standards for Sixth Amendment challenges. The seminal case is Strickland v. Washington.18 The

Strickland Court began its analysis with an observation reminiscent of due process cases. “The

benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so

undermined the proper functioning of the adversarial process that the trial cannot be relied on as

having produced a just result.” The Court then continued to speak of defense counsel’s role in the

adversarial process, but in doing so began to relate adequacy of counsel to prevailing standards of

representation instead of exclusively to fairness of result.

[T]he proper standard for attorney performance is that of reasonably effective assistance....

More specific guidelines are not appropriate....

Representation of a criminal defendant entails certain basic duties.... From counsel’s function

as assistant to the defendant derive the overarching duty to advocate the defendant’s cause

and the more particular duties to consult with the defendant on important decisions and to

keep the defendant informed of important developments in the course of the prosecution.

... In any case presenting an ineffectiveness claim, the performance inquiry must be whether

counsel’s assistance was reasonable considering all the circumstances. Prevailing norms of

practice as reflected in the American Bar Association standards and the like ... are guides to

determining what is reasonable, but they are only guides. No particular set of detailed rules

for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by

defense counsel or the range of legitimate decisions regarding how best to represent a

criminal defendant.19

Broad leeway is to be given to defense counsel in fashioning defense strategies, and

reasonable professional assistance can comprehend a wide range of options. The purpose of

the Sixth Amendment, according to Strickland, is limited to setting a baseline for acceptable

attorney conduct to preserve the integrity of the criminal justice system. “[T]he purpose of

the effective assistance guarantee of the Sixth Amendment is not to improve the quality of

legal representation, although that is a goal of considerable importance to the legal system.

The purpose is simply to ensure that criminal defendants receive a fair trial.”20

The test for relief under Strickland is two-pronged. Even if representation is constitutionally

deficient, a defendant still must show that the deficiency was prejudicial to the outcome of the

case. The Supreme Court did not address this second prong in its Padilla decision. As discussed

below, application of the prejudice requirement can be both difficult and strict.

Supreme Court’s Decision in Padilla v. Kentucky

The Supreme Court issued its decision in Padilla v. Kentucky on March 31, 2010.21 Seven of the

nine Justices agreed that the Sixth Amendment right to effective assistance requires that a defense

lawyer, at a minimum, raise the possibility of deportation in advising a noncitizen in a criminal

case. Writing the five-Justice majority opinion, Justice Stevens acknowledged the prevalence of

466 U.S. 668 (1984).

466 U.S. at 687, 688-689.

466 U.S. at 689.

559 U.S. ___, No. 08-651, slip op. (March 31, 2010).

Congressional Research Service

Ineffective Assistance of Counsel: Deportation Consequences of Guilty Pleas

the direct versus collateral consequences test in effective assistance jurisprudence. Nevertheless,

he eschewed applying that test in Padilla’s case “because of the unique nature of deportation.”22

Justice Stevens raises several considerations that together make deportation different. First, the

impact of deportation is profound. Though recognizing that removal proceedings are civil in

nature and that deportation is not strictly a criminal sanction, Justice Stevens characterizes

deportation as a “particularly severe ‘penalty.’” Second, it is “‘most difficult’ to divorce the

penalty [of removal] from conviction in the deportation context.” Though he states that he is

reserving the question of whether a direct versus collateral consequences test is ever appropriate

in an effective assistance case, Justice Stevens emphasizes that changes in immigration law now

make deportation a “nearly automatic result” for many noncitizen offenders. Third, deportation

has long been closely associated with criminal prosecutions. For example, Justice Stevens

observes that, from 1917 to 1990, Congress had given both state and federal sentencing judges

discretion to make a “judicial recommendation against deportation” (JRAD) in individual

criminal cases in which a noncitizen offender would otherwise be vulnerable to removal, and

immigration authorities had honored these recommendations. The majority further notes that the

United States Court of Appeals for the Second Circuit had held that, before Congress repealed

authority for them, JRAD requests were part of criminal sentencing, and not of deportation

proceedings, and failure of defense counsel to be aware of, advise on, and pursue JRAD relief

during sentencing could be the basis of a Sixth Amendment ineffective assistance claim. 23

After holding that “advice regarding deportation is not categorically removed from the ambit of

the Sixth Amendment right to counsel,”24 Justice Stevens turns to whether the level of

representation provided to Padilla by his counsel was reasonable under prevailing professional

norms. In quick order, the majority opinion holds that it was not. In doing so, Justice Stevens in

one paragraph marshals the American Bar Association Standards for Criminal Justice and 15

other authorities, from bar guides to practice manuals to a Department of Justice compendium of

standards for defending indigents to scholarly treatises and articles. Echoing Strickland in calling

these authorities valuable guides, the majority finds that “[t]he weight of prevailing professional

norms supports the view that counsel must advise her client regarding the risk of deportation.”25

Simply requiring defense counsel to mention a possibility of deportation provides minimal

guidance. Immigration law can be complicated and each plea negotiation presents its own

challenges. Unless the duty to advise is never to extend beyond a general warning that plea

bargains might implicate deportation, courts will inevitably be called upon to determine what

assistance is reasonable in particular circumstances. There may be several facets to an inquiry into

effective assistance. For example, at what stage must an attorney discern the prospect of

deportation attendant to possible plea offers that might arise during plea negotiations and discuss

them with the defendant? Also, when is consultation with an immigration law expert required?

(And at whose expense—noncitizens do not have a right to an attorney at government expense in

removal proceedings?)

Slip op. at 8.

Slip op. at 5, citing Janvier v. United States, 793 F.2d 449 (2d Cir. 1986).

Slip op. at 9.

Slip op. at 9. Justice Stevens quotes from an amicus brief: “[A]uthorities of every stripe ... universally require

defense attorneys to advise as to the risk of deportation consequences for non-citizen clients.... ” Slip op. at 10, quoting

Brief for Legal Ethics, Criminal Procedure, and Criminal Law Professors, as Amici Curiae in Support of Petitioner at

12-14, Padilla v. Kentucky, No. 08-651.

Congressional Research Service

Ineffective Assistance of Counsel: Deportation Consequences of Guilty Pleas

On this issue of what immigration expertise is required of defense counsel, the five-Justice

majority opinion and the two-Justice concurrence part ways. The majority has some expectation

that defense counsel will personally look into, though not necessarily become an expert on, the

deportation risks attending a potential guilty plea. According to the majority, when immigration

law is “succinct, clear, and explicit in defining the removal consequence” of a conviction for a

specified crime, an attorney must correctly advise on the very high likelihood of deportation

before the accused pleads guilty to the offense. On the other hand, if the prospect of deportation

due to a particular plea appears less certain, the lawyer’s obligation is more general. In less

straightforward cases, “a criminal defense attorney need do no more than advise a noncitizen

client that pending criminal charges may carry a risk of adverse immigration consequences.”26

Silence, however, is never an option.27

Ultimately, silence, or at least willful silence, is not an option for concurring Justices Alito and

Roberts either. Beyond avoiding affirmative misadvice, they would require that “[w]hen a

criminal defense attorney is aware that a client is an alien, the attorney should advise the client

that criminal conviction may have adverse immigration consequences under immigration laws

and that the client should consult an immigration specialist if the client wants advice on the

subject.”28 The concurrence’s preference for a “warn and refer” standard rests largely with its

view of immigration law. Immigration law is complicated; courts of appeals disagree on the

criminal alien provisions; what appears to be clear may not be; and, therefore, requiring criminal

defense lawyers to assess and advise on immigration consequences carries with it the risk that the

advice may be incomplete, misleading, or mistaken. Better, in the concurrence’s view, to limit

defense counsel’s responsibilities to matters germane to guilt and criminal punishment and leave

responsibility for giving advice on immigration consequences to immigration experts or, possibly

to a lesser extent, the courts.

In dissent, Justice Scalia, joined by Justice Thomas, finds “no basis in text or in principle to

extend the constitutionally required advice regarding guilty pleas beyond those matters germane

to the criminal prosecution at hand—to wit, the sentence that the plea will produce, the higher

sentence that conviction after trial might entail, and the chances of such a conviction.”29 In the

dissent’s view, even if a defense lawyer should look into possible immigration issues under

prevailing norms of practice, not “all professional responsibilities of counsel ... become

constitutional commands.” Rather than being a Sixth Amendment issue of effective assistance of

counsel in a criminal prosecution, the dissent finds the heart of the controversy in Padilla to lie

closer to notions of ensuring the fairness and voluntariness of guilty pleas. This is a due process

obligation of the court, not counsel, and even though there may not be a constitutional remedy in

Slip op. at 12.

One much discussed issue in Padilla’s case that turned out not to be prominent in the Court’s analysis was the

significance of mistaken advice. The Solicitor General and the initial appellate decision by the Kentucky courts, for

example, would have drawn the line on ineffective assistance in a criminal case between not advising on the “collateral

consequence” of deportation and wrongly volunteering to a defendant that deportation was not a possible consequence

of a guilty plea. The majority, however, concluded that “[a] holding limited to affirmative misadvice would invite two

absurd results. First, it would give counsel an incentive to remain silent on matters of great importance, even when

answers are readily available.... Second, it would deny a class of clients least able to represent themselves the most

rudimentary advice on deportation even when it is readily available.” Slip op. at 13. The concurrence agreed that

simply refraining from giving wrong advice on deportation was insufficient to meet Sixth Amendment requirements.

Padilla v. Kentucky, 559 U.S. ___, No. 08-651, slip op. at 14 (March 31, 2010) (Alito, J., joined by Roberts, C.J.,

concurring).

Padilla v. Kentucky, 559 U.S. ___, No. 08-651, slip op. at 3 (March 31, 2010) (Scalia, J., joined by Thomas, J.,

dissenting).

Congressional Research Service

Ineffective Assistance of Counsel: Deportation Consequences of Guilty Pleas

a case like Padilla’s—the dissent observes that the matter had not been presented to the lower

courts and, remember, that the distinction between direct and collateral consequences was drawn

in due process plea decisions—legislatures and the courts could establish (and to a degree have

established) nonconstitutional rules and remedies for falling to advise, or for misadvising, on

deportation.

Outstanding Issues

Prejudice to the Defendant

The Padilla Court did not decide whether Padilla was entitled to relief because the courts below

had never reached the “prejudice” prong of the Strickland test. Again, a failure to provide

reasonable professional assistance can fall short of Sixth Amendment expectations but still not

warrant setting a plea aside. For that, a defendant must have been “prejudiced” by the error. As

articulated in Strickland: “It is not enough for the defendant to show that the errors had some

conceivable effect on the outcome.... On the other hand, we believe that a defendant need not

show that counsel’s deficient conduct more likely than not altered the outcome in the case.... The

defendant must show that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”30 When a defendant seeks to set

aside a guilty plea for ineffective assistance reasons, “in order to satisfy the ‘prejudice’

requirement, the defendant must show that there is a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted on going to trial.”31

Determining what a defendant would have done had counsel met Sixth Amendment standards is

necessarily predictive. Also, when effective counsel would have consisted of telling a defendant

that a particular plea would result in deportation, it may be especially difficult in many cases to

safely conclude that a reasonable defendant nevertheless would have accepted the plea instead of

going to trial or continuing plea negotiations. Why not “roll the dice” when exile is the

alternative?

Still, courts have been willing to rigorously explore what the counterfactual would have been. As

to Padilla, it may be argued that the case against him was so overwhelming that conviction of

some deportable offense was certain and going to trial would have exposed him to a much longer

term of imprisonment.32 The rub is that without a trial record, it is difficult to assess the strength

of the government’s case or the accused’s defense. It thus appears that assessing prejudice could

entail holding an evidentiary hearing to determine whether the defendant had a triable case with

some reasonable chance of acquittal or conviction of a lesser, non-deportable offense. 33 But even

this type of process may not adequately get to whether “there is a reasonable probability that, but

for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on

going to trial.” When deportation is certain, it may especially difficult to conclude that trial is not

a reasonable alternative without also taking into account such broader considerations as the

466 U.S. at 693, 694.

Hill v. Lockhart, 474 U.S. 52, 59 (1985).

See Brief for the United States, as Amicus Curiae Supporting Affirmance at 29-32, Padilla v. Kentucky, No. 08-651.

See Transcript of Oral Argument Before the Supreme Court at 18-19, Padilla v. Kentucky, No. 08-651 (Oct. 13,

2009).

Congressional Research Service

Ineffective Assistance of Counsel: Deportation Consequences of Guilty Pleas

defendant’s family ties in the United States and the conditions he would face in his home country

if deported there.34

Applicability of the “Direct Consequences” Limitation

The majority in Padilla based its analysis on the purported uniqueness of deportation. Also,

because the majority found deportation to be unique, resolving Padilla did not, according to the

majority, require consideration of whether to apply a distinction between direct and collateral

consequences to define the scope of constitutionally compelled legal representation under the

Sixth Amendment.

After Padilla, it seems inevitable that a variety of offenders will allege they were not advised on

some matter not directly germane to guilt and criminal punishment and that the failure to be

advised caused them to enter a guilty plea they otherwise would have rejected. Will the courts

hold the line at deportation, or will they engage in an extended exploration of what consequences

“count” (e.g., because of their harshness and immediacy, or for some other reason) and what

consequences “do not count”? Justice Scalia, among others, sees the floodgates opening: “[The

concurring opinion’s] suggestion that counsel must warn defendants of removal consequences ...

cannot be limited to those consequences except by judicial caprice. It is difficult to believe that

the warning requirement would not be extended, for example, to the risk of heightened sentences

in later federal prosecutions pursuant to the Armed Career Criminal Act. We could expect years of

elaboration upon these issues in the lower courts, prompted by the defense bar’s devising of everexpanding categories of plea-invalidating misadvice and failures to warn—not to mention

innumerable evidentiary hearings to determine whether misadvice really occurred or whether the

warning was really given.”35

Even if the courts were to consider “effective assistance” claims in additional contexts, some do

not see the implications of considering “collateral” consequences to be overwhelming. One

commentator envisions that the great majority of collateral consequences would flow from three

circumstances: Is the client an alien? Does the client have a criminal history or other pending

charges? Does the client hold government licenses, hold a government job, or collect public

benefits? Further considerations might pertain to drug or sex crimes. Exploring these issues, it is

claimed, is “a manageable amount of basic spadework.”36

Also, judicial delineation of what consequences merit “effective assistance of counsel” during the

course of a prosecution may not be as “prolonged” or “arbitrary” as Justice Scalia may suggest.

For one thing, there may be a range of consequences that are so relatively inconsequential that

they rarely will be found to have prejudiced a defendant’s calculus in deciding whether to plead

guilty. Will failure to be informed of possibly losing the right to vote, for example, ever be found

to have unreasonably prejudiced the decision of a defendant to plead guilty instead of risking

many more years of imprisonment or capital punishment? Further, though not directly at issue

before the trying court, some consequences might be seen as fitting more naturally into the inner

See Transcript of Oral Argument Before the Supreme Court at 35-36, Padilla v. Kentucky, No. 08-651 (Oct. 13,

2009).

Padilla v. Kentucky, 559 U.S. ___, No. 08-651, slip op. at 4 (March 31, 2010) (Scalia, J., joined by Thomas, J.,

dissenting).

Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87

CORNELL L. REV. 697, 738 (2002).

Congressional Research Service

Ineffective Assistance of Counsel: Deportation Consequences of Guilty Pleas

orbit surrounding “direct consequences” and thus meriting advice of counsel. In addition to

deportation, for example, there are the possible and easily identifiable consequences for

defendants within the criminal justice system itself—for example, eligibility for parole and

heightened penalties for future convictions. Finally, there may be policy and legal limits on

legislatures in establishing incidental effects of criminal convictions.

Role of the Legislatures and the Courts

Though the Constitution does not require trial courts to inform noncitizen defendants of possible

deportation consequences of guilty pleas—due process requirements for knowledgeable and

voluntary pleas cover only “direct” criminal consequences—many jurisdictions do. According to

one amicus brief in Padilla, 28 states, the District of Columbia, and Puerto Rico have a statute,

court rule, or standard plea form requiring an advisement on immigration consequences. 37

The requirements vary. For example, the District of Columbia Code requires that a court give the

following advisement on the record prior to accepting a plea of guilty or nolo contendere: “If you

are not a citizen of the United States, you are advised that conviction of the offense for which you

have been charged may have the consequences of deportation, exclusion from admission to the

United States, or denial of naturalization pursuant to the laws of the United States.”38

Additionally, the court is directed to allow a defendant additional time to consider a plea upon

request of the defendant after the advisement.39 Moreover, if a court fails to give the required

advisement and the plea may have one of the consequences included in the advisement, the

defendant can have the judgment vacated and enter a plea of not guilty in its stead. 40 Some states

require a more general warning that a plea can have immigration consequences.41 Other variations

require that the court direct a defendant to defense counsel for advice, 42 or even that the court

ascertain whether a defendant’s attorney has discussed possible deportation consequences with

the accused. 43 Not all of the statutes and rules call for automatic vacation of a plea for failure to

meet pertinent requirements.

Constitutionalizing a defense counsel obligation to advise on possible deportation does not

foreclose this type of legislation or rules, nor necessarily make existing statutes and rules

superfluous. Rather, statutes and rules could still have an important complementary or

supplementary role. For example, a requirement that a court inform a defendant of the possibility

of deportation consequences, along with an opportunity to consult with defense counsel further,

presumably could lessen the possibility of a Sixth Amendment violation for failure of defense

counsel to advise. Also, allowing a defendant to have a plea vacated upon showing, for example,

that the court failed to warn of possible deportation on the record, or give additional time to

consult counsel on this point, could provide for a statutory remedy through a much easier process

than might be required to show a constitutional violation. A statutory case could be made simply

Brief of the National Association of Criminal Defense Lawyers, et al. as Amici Curiae in Support of the Petitioner at

20-21, App. 11a, Padilla v. Kentucky, No. 08-651.

D.C. Code Ann. § 16-713 (a) (2010).

D.C. Code Ann. § 16-713 (b) (2010).

Id.

E.g., Tex. Code Crim. Proc. art. 26.13 (2010).

Md. Rule 4-242(e) (2010).

N.M. Dist. Ct. R.Cr.P. 5-303(F)(5) (2010).

Congressional Research Service

Ineffective Assistance of Counsel: Deportation Consequences of Guilty Pleas

by consulting the court record, whereas a constitutional case might necessitate difficult inquiries

into prejudice and what defense counsel told, or failed to tell, the defendant and when.

Author Contact Information

(name redacted)

Specialist in American Public Law

[redacted]@crs.loc.gov, 7-....

Congressional Research Service

EveryCRSReport.com

The Congressional Research Service (CRS) is a federal legislative branch agency, housed inside the

Library of Congress, charged with providing the United States Congress non-partisan advice on

issues that may come before Congress.

EveryCRSReport.com republishes CRS reports that are available to all Congressional staff. The

reports are not classified, and Members of Congress routinely make individual reports available to

the public.

Prior to our republication, we redacted names, phone numbers and email addresses of analysts

who produced the reports. We also added this page to the report. We have not intentionally made

any other changes to any report published on EveryCRSReport.com.

CRS reports, as a work of the United States government, are not subject to copyright protection in

the United States. Any CRS report may be reproduced and distributed in its entirety without

permission from CRS. However, as a CRS report may include copyrighted images or material from a

third party, you may need to obtain permission of the copyright holder if you wish to copy or

otherwise use copyrighted material.

Information in a CRS report should not be relied upon for purposes other than public

understanding of information that has been provided by CRS to members of Congress in

connection with CRS' institutional role.

EveryCRSReport.com is not a government website and is not affiliated with CRS. We do not claim

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.