Where Do We Go from Padilla v. Kentucky? Thoughts on Implementation and Future Directions

On March 31, 2010, the U.S. Supreme Court held in the landmark case of Padilla v. Kentucky that the Sixth Amendment right to effective assistance of counsel in criminal cases includes the right for non-U.S. citizens to be correctly and specifically advised about the likely immigration consequences of a plea agreement. The decision represents an important shift in the way courts have addressed such claims by noncitizen defendants. The Court’s decision recognizes a constitutional requirement that defense counsel provide advice in an area of law in which few defense counsel are knowledgeable, and therefore raises important and difficult questions about how counsel can comply with these duties, especially in the face of limited financial and human resources. The Court’s analysis may also have broader and equally important constitutional implications for limitations on the imposition of deportation and for the imposition of non-immigration related “collateral” consequences following convictions. This Article explores some of those questions. It addresses some of the challenges to implementing the Court’s decision, including the complexity of the advice and representation it mandates and the realities of limited financial resources and expertise in the legal community on these issues. It identifies some of the broader doctrinal and analytical questions raised in the Court’s analysis, with an eye toward exploring some implications for other possible constitutional limits on imposing removal as a sanction for criminal activity and for the imposition of non-immigration related consequences following convictions. It identifies some ways that thoughtful response to the decision in the short term can lay the groundwork for developing best practices in the long run. Finally, it situates this discussion in the wider question of the most appropriate legal response to criminal activity by noncitizens, concluding that, while Padilla represents an appropriate accommodation by the criminal justice system of current immigration law regarding convictions, a better, more just legal framework would return to the immigration system the flexibility and discretion to respond appropriately and proportionately to convictions