The Supreme Court of the United States in a decision of March 31, 2010, in the Padilla vs. Kentucky, found that an attorney must inform his client whether his plea carries the risk of deportation. In the Padilla case, failure of a lawyer to advise his client that with a conviction he could face deportation is something that his defense lawyer should have discussed with him. It is important that if you are charged in Federal Court that Counsel provide answers to all questions.
Failure of a defense attorney to properly advise his client of the potential penalties is essential for effective assistance of competent counsel. The main Supreme Court case on effectiveness of counsel is Strickland vs Washington 466 US 668. The Sixth Amendment of the United States Constitution, provides a person charged with a crime has the right to have effective assistance of counsel. In Padilla, the U.S. Supreme Court found that deportation is a particularly servile penalty that is intimately related to the criminal process and, as such, counsel should have advised their client of the risk of deportation.
Also, in the Padilla case, the Supreme Court looked to the ABA standards concerning pleas of guilty and the NLADA (National Legal Aid & Defender Association) Guidelines for defense lawyers in providing guidance as to what standards effective assistance of counsel. In any case, the Sixth Amendment requires that persons charged with a crime have an affirmative, competent attorney that can provide advice regarding all issues, including those regarding immigration consequences
It makes sense if you think about the situation in which a person is placed. They may never have been in trouble with the law before and now they are suddenly charged with a crime. The only experience they have as to Criminal Procedures or the Rules of Evidence is what they would have gathered from watching television shows and movies. Often clients will call me and seek out advice asking “Could the police arrest me because they did not read me my rights?” Everyone is familiar with the television show “Hawaii Five-O,” and because of that and other television movies, most citizens in this country feel that the police cannot arrest somebody unless they read them their rights. This is an example where a common perception of what the law is and the reality of the law itself are diverse. The police do not need to read a person their “rights” in order to arrest them.
You do have a constitutional right not to incriminate yourself and the right to your Miranda warnings is triggered when the police seek to question you concerning a crime. Often, the police will approach a defendant or have a person come in, read them their rights simply to question them, and find out whether or not charges should be brought.
In Padilla vs. Kentucky, Justice Alito filed the opinion and concurring judgement, in which Chief Justice Roberts joined. In that case, Padilla had been a lawful resident of the United States for 40 years. He had been charged and plead to a drug distribution offense in the state of Kentucky. Padilla alleges that his counsel failed to tell him about the consequences of a guilty plea to drug distribution charges would be deportation. His lawyer told him the opposite that he lived in this country so long that he wouldn’t have to worry about being deported.
The United States Supreme Court found that because his client was not informed about the risk of deportation, his counsel was constitutionally deficient.
So what does Padilla mean for other cases in which a person may claim under Strickland vs. Washington and now the Padilla vs. Kentucky that their lawyer was ineffective and did not properly advise their client? Depending on the severity of the potential loss for failure to advise a client an attorney can attempt to expand the requirement that a defense attorney has in advising his clients of potential penalties.
The effects of a conviction of a crime in our country are multifaceted. If a person is convicted of certain crimes, they can lose their ability to practice their chosen profession. They can lose their ability to live and reside in certain places. Conviction for a felony eliminates the right for someone to vote, hold public office, possess a firearm or ammunition, and other civil liberties that most people take for granted.
The most important function an attorney has in addition to representing someone who is facing a charge or has been charged with a crime, is advising and counseling their clients. Attorneys are often called counselors, and a great deal of time must be spent with the client explaining the charge, the violations alleged by the government, and what elements the government must prove in order to prove that a crime has been committed. Today, because of Padilla, and other obligations, an extreme amount of time must be spent explaining the consequences of a plea of guilty or being found guilty by a jury in this country. The effects of a guilty plea or being found guilty at a trial will continue to follow someone long after they have left the criminal process. It is the duty of every attorney who chooses to represent a person charged with a crime of all potential outcomes and severe consequences on a citizen.