Legal Commentary

He's been too modest to announce it during his blogging stint, and I've been delinquent in announcing it, but the Supreme Court recently embraced Jack Chin's work on the Strickland obligations of counsel to inform defendants of collateral consequences such as deportation. In Padilla v. Kentucky, which was handed down almost two weeks ago, all of the Justices cited Jack's 2002 Cornell piece with Richard Holmes. Interestingly, the piece was cited five times across all 3 opinions (majority, concurring, and dissenting). The majority opinion, written by Justice Stevens, was joined by Kennedy and the rest of the fab 4; Roberts and Alito concurred in the judgment, and Scalia & Thomas dissented. Aside from Jack and Richard's piece, the Court also quoted and cited an amicus brief by prawfs in crim law/proc and legal ethics. Who says there's nothing applicable from the world of scholarship??

The case is important for all criminal defense attorneys advising plea deals. While deportation is the focus of the case, Justice Alito's concurring opinion makes clear that deportation will not be the only "collateral" consequence that will be implicated by the Padilla opinion.  That's because it will be hard to restrict the logic here: removal proceedings are concededly a "civil" issue, but the SCT now recognizes deportation as "intimately" if not inextricably connected to criminal convictions. The same can be said of any number of other collateral consequences that attach as a result of conviction (as opposed to simply conduct).

Three other points. 

First, I was surprised and, yes, disappointed to see the stingy position taken by the Solicitor General's office in this case: "In the United States? view, 'counsel is not constitutionally required to provide advice on matters that will not be decided in the criminal case,' though counsel is required to provide accurate advice if she chooses to discusses these matters."  I was heartened to see that this position was rejected. Everyone's now interested in SG Kagan's views as she is on the shortlist for Stevens' seat. I'm a huge fan of "Team Kagan" as a general matter, but I'm not sure how much this position is expressive of her personal views and what she might argue as a Justice. (My sense is that the position she takes as SG is likely to be closer to what her views actually are than if she were simply a private lawyer, but perhaps that is naive in this situation. That said, understanding that the US is her client, it's not obvious why the US government is not well-served by defendants with full and frank advice about the consequences of plea bargains.)

Second, this case might be a fair data point for Barry Friedman's thesis about the SCt's majoritarian tendencies, since the Court here basically entrenched as constitutionally required a practice that has been espoused as obligated under professional norms and is already a feature of many states' plea bargaining processes.  See n. 15 of the opinion, providing cites to over 20 states' laws requiring courts to inform defendants of possibly adverse immigration consequences. While 23 is not 26 or 40, perhaps it's worth noting that Cal, NY, Tex and Fl were among those states cited, so it's likely a majority of the population lives in the states where this happens--probably a better way of representing national majorities than counting states' noses themselves. (Oops: further study shows at least 28 states already adopted the rule in question.)  And while I'm thinking about Friedman, I'd be remiss if I didn't also link to Why Law Should Lead, a very interesting and critical take on Friedman's book by newbie UTex prawf Justin Driver in the New Republic.  

Third, after reading the dissent by Scalia and Thomas, I was not persuaded by their claim  that no principle justifies the extension of Strickland to this situation. This argument of theirs relies on the formality associated with the criminal prosecution and the collateral consequences arising from conviction, such as deportation. Scalia and Thomas rejected formalist distinctions between sentencing fact vs criminal elements in the context of Apprendi-land, culminating in their participation in the majorities for Blakely and Booker (merits). It's not clear why their realism must break here.

Specifically, the dissent in Padilla is wrong to think there's no principle involved here that would justify the requirement of the majority. When punishing someone like Padilla, the state is speaking in a form of communicative retributivism. There's no way of reasonably disclaiming that the deportation is also not part of the communication of condemnation associated with punishment. Absent the conviction, the deportation doesn't occur, and there's no way of justifying the deportation penalty in a manner that is simply a matter of "risk regulation." (The case for risk management would ironically be stronger on the other hand if there were only conduct, not a conviction, that served as the basis for deportation.) Thus as long as the gov't is speaking in that register of condemnation, it is on the hook for justifying that burden as part of its punitive arsenal and it must also provide appropriate levels of procedural safeguards to ensure fairness in the imposition of these sanctions.