October 2009

Under a policy announced last year by San Francisco Mayor Gavin Newsom the day after he launched his California gubernatorial campaign, teenagers arrested for any reason in San Francisco would be subjected to immigration status checks. But that policy has been overturned by the the city's and county's Board of Supervisor's.

The Board rescinded that policy yesterday, saying that it led to the unwarranted break-up of many families. Under the new policy, teens arrested for felonies will still have their immigration status checked and may be turned over to federal immigration officials where appropriate.

"We recognize that there's a need to do some reporting" of illegal juveniles, Supervisor David Campos told The New York Times. "But we're trying to strike a balance."

Last week's argument forecasts the potentially broad scope of the Court's eventual decision in Padilla v. Kentucky. The two specific questions raised by the case are 1) whether providing effective assistance of counsel in accord with the Sixth Amendment requires defense attorneys to investigate and advise non-citizen defendants about the deportation consequences of a guilty plea and 2) whether affirmatively misadvising a client that a plea will not result in deportation constitutes ineffective assistance. These questions implicate the larger issue of whether the Sixth Amendment requires defense lawyers to investigate and give accurate advice regarding the collateral consequences of a guilty plea. Collateral consequences are consequences that may result from a criminal conviction and which are not within the sentencing court's control. They include loss of the right to vote, loss of a professional license, and, potentially, immigration consequences.

The Sixth Amendment guarantees criminal defendants the right to the effective assistance of counsel in all criminal proceedings. Strickland v. Washington established a two-prong test for evaluating ineffectiveness claims, which has since been applied to guilty pleas (Hill v. Lockhart). To establish ineffectiveness, first "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Reasonableness is determined with reference to "prevailing professional norms." The reasonableness inquiry is case specific and context driven, taking into account all the circumstances. Second, the defendant must demonstrate prejudice. This requires establishing that with competent advice, a rational defendant would not have pled guilty but would have insisted on going to trial.

In this case, Mr. Padilla, a lawful permanent resident, Vietnam war veteran, and 40-year resident of the United States pled guilty to an offense that results in mandatory deportation. He did so based upon the affirmative misadvice of his lawyer that he "did not have to worry about immigration status since he had been in the country so long." Had his lawyer provided accurate advice, Mr. Padilla would have insisted on going to trial.