by RICH CASSIDY on MARCH 31, 2010
U.S. Supreme Court: Competence requires that defense counsel correctly advise criminal defendants of deportation due to conviction.
In Padilla v. Kentucky, 509 U.S. ___ (March 31, 2010), decided today, the United States Supreme Court held that a criminal defense lawyer’s failure to correctly advise his client that, upon a conviction of charge of felony possession of marijuana, the defendant was virtually certainly be deported, failed to meet the standard of competent representation. The 7-2 decision applies the Strickland standard of lawyer competence for the first time to a failure to give accurate advice on a “collateral consequence of conviction.”
Collateral consequences are the legal penalties and disabilities based on a conviction that apply to a convicted person in addition to the penalties imposed by the judge as part of the sentence.
The majority opinion of Justice Stevens, joined by 4 other members of the Court, has potentially broad implications. Stevens wrote that the Court had “never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland.” Strickland v. Washington, 468 U.S. 668 (1984). Taken together, the Court’s opinions imply that failure to correctly advise of other important collateral consequences may also fail to constitute objectively competent representation.
Justice Alito, concurring in the result in an opinion joined by Chief Justice Roberts, would have only required that a criminal defense lawyer advise his client to consult with competent immigration counsel.
Justice Scalia, joined by Justice Thomas, dissented, arguing that the 6th Amendment right to counsel is limited to the defense of criminal prosecutions and does not apply to the civil law consequences of conviction.
The federal government, states, and local governments by statute, regulation, and even by practice, impose many collateral consequences based on convictions. These consequences have never been comprehensively collected on a national basis. An American Bar Association study of the statutory and regulatory consequences is already underway. The ABA study is funded by a U.S. Department of Justice, National Institute of Justice grant authorized by Section 10 of the Court Security Act of 2007, which was proposed by U.S. Senator and Judiciary Committee Chair Patrick J. Leahy, D-Vermont. In some states where studies have been completed, hundreds of statutory collateral consequences have been identified.
In August of 2009, the Uniform Law Commission adopted the Uniform Collateral Consequences of Conviction Act. The Act, approved by the American Bar Association House of Delegates in February of 2010, would require that each state adopting it give simple written notice of the idea of collateral consequences at the time of a charge, collect and make available to list of state statutory and regulatory collateral consequences, regulate the collateral impact of out of state convictions, pardons, and other relief, and provide for limited relief from some collateral consequences based on administrative action.
Rich*
*The author chaired the Uniform Law Commission Study and Drafting Committees on the Uniform Collateral Consequences of Conviction Act and is an advisor to the ABA Criminal Justice Section study of Adult Collateral Consequences.