South Carolina Criminal Defense Blog

The United States Supreme Court has granted cert in Padilla v. Commonwealth of Kentucky, which deals with the issue I raised in my post about Hayes:

Does the Sixth Amendment’s guarantee of effective assistance of counsel require a criminal defense attorney to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation, and if that misadvice about deportation induces a guilty plea, can that misadvice amount to ineffective assistance of counsel and warrant setting aside the guilty plea?

In South Carolina, that question has been answered in the affirmative - where plea counsel gives incorrect advice as to the collateral consequences of a guilty plea, that is ineffective assistance of counsel. When the defendant would have chosen to take his case to trial rather than plead guilty, but for the faulty advice, then the plea is set aside. Kentucky took the opposite position in Padilla, and the USSCT will decide whether that violates the Sixth Amendment. Even if the Court holds that it does not, the states are free to provide this additional protection - the federal constitution is a minimum guarantee of rights, and the states can and often do interpret their constitutions as providing more protection than the federal constitution.

Scott Greenfield at Simple Justice argues that, although attorneys have a duty to answer correctly when they answer, the responsibility lies with judges to include this advisement in their plea colloquy:

What's the solution? As I've argued since 1990, every judge should include in the allocution the collateral immigration consequences of a plea of guilty. Even if it's the defense lawyer's practice to inform his clients, it remains the duty of the judge to make certain that the defendant's plea is fully informed. While I agree that deportation is a collateral consequence of a plea, and that there is certainly some lack of clarity about what constitutes an aggravated felony and whether criminal defense lawyers should be expected to have expertise in immigration law as well, the fact remains that a defendant is entitled to effective representation when he obtains an answer to a question in anticipation of a plea.

The moral of the story is that when you answer your client's pre-plea questions, you are responsible for giving them the correct answer. It really isn't that much to ask.

Remy Orozco at Hostis Civitas disagrees in part, arguing that the duty to inform the client of immigration consequences lies squarely on the defense attorney:

When a defendant decides to plead guilty or go to trial they do so under our advisement and it is our responsibility to ensure that we present them with all the facts and possible outcomes for them to weigh as they make their decision. In the Padilla case, his attorney committed malpractice when he misinformed him as to the collateral consequences his guilty plea would have on his immigration status. Mr. Padilla has a 6th Amendment right to effective assistance of an attorney. What makes this case so agregeous is the fact that Mr. Padilla specifically asked his attorney what consequences the guilty plea would have on his immigration status and his attorney misinformed him.

The fact is, no one knows the defendant's situation like the defense attorney. The judge, and often the prosecutor, often do not know the defendant's immigration status unless the defense attorney tells them - which does place the responsibility squarely on the shoulders of the defense lawyer. I agree with Remy that an attorney who ignores the fact that his client is not a legal resident, or does not inquire, is committing malpractice. The courts, however, disagree with us on this point - the only question that the USSCT will decide in Padilla is whether it is ineffective to give a wrong answer when the client asks about the consequences.