Padilla v. Kentucky

  • November 2, 2012
    Guest Post

    By Elizabeth B. Wydra, Chief Counsel, Constitutional Accountability Center (CAC). This analysis originally appeared on CAC’s Text & History Blog.


    The Supreme Court was in session Nov. 1 for a rare Thursday hearing, after rescheduling the arguments that were originally to be heard this past Tuesday due to Hurricane Sandy. It was odd to be in the courthouse on a Thursday, and it was mostly empty. Which is a shame, because the arguments in Chaidez v. United States are important and were very well made by both advocates in the case (Jeffrey Fisher for Ms. Chaidez, and Deputy Solicitor General Michael Dreeben for the United States).

    But the Justices, of course, were in the house, and we saw Hurricane Ginsburg make landfall (albeit in her usual elegant, well-mannered, and pointed yet respectful way). However, before getting into this morning’s argument in more detail, it is worth briefly recounting the facts of the case. Petitioner Roselva Chaidez, a citizen of Mexico, came to the United States in 1971 and became a lawful permanent resident in 1977. In 2003, Ms. Chaidez, on advice of counsel, pleaded guilty to mail fraud in connection with an insurance fraud scheme; she received $1,200 from the scheme, and in its entirety the fraud operation netted about $26,000. Ms. Chaidez was sentenced to four years of probation under the terms of her guilty plea. Unfortunately for Ms. Chaidez -- and unbeknownst to her at the time she pleaded guilty -- under federal immigration law, a fraud conviction involving a total loss in excess of $10,000 constitutes an “aggravated felony” for which a non-citizen can be deported. In 2009, after Ms. Chaidez unsuccessfully filed a petition for naturalization (and subsequently disclosed her criminal conviction in the interview, reflecting her lack of awareness of its immigration consequences), the U.S. government initiated removal proceedings based on her conviction.

  • November 1, 2012
    Guest Post

    By Rebecca Sharpless, Associate Clinical Professor, University of Miami School of Law


    Two years ago in Padilla v. Kentucky the U.S. Supreme Court ruled that the Sixth Amendment requires that defense attorneys advise their noncitizen clients about the immigration consequences of a plea. The Court recognized what, for decades, the defense and immigration bars have known: competent defense counsel must advise about immigration consequences of a plea. Today, in Chaidez v. USA, No. 11-820, the Court hears argument on the question of whether Padilla governs cases involving federal convictions that predate that decision.

    Chaidez’s defense attorney failed to advise her that pleading guilty to the federal crime of mail fraud would be deemed an aggravated felony, triggering mandatory deportation.  Before Padilla was decided, Chaidez petitioned for a writ of coram nobis under 28 U.S.C. § 1651(a) to set aside her conviction based on ineffective assistance of counsel. After Padilla, Chaidez relied upon the decision to lend support to her argument that her attorney had breached a duty to advise her about deportation.

  • April 14, 2010

    By Margaret Love, who now represents applicants for pardon and commutation. Love previously served as U.S. Pardon Attorney under Presidents George H. W. Bush and Bill Clinton. 
    At a recent oral argument in a case involving the crack cocaine sentencing guidelines, Supreme Court Justice Anthony Kennedy asked Assistant Solicitor General Leondra Kruger, "Does the Justice Department ever make recommendations that prisoners like this have their sentence commuted?"

    It was a question that stumped Ms. Kruger. The answer should have been "not very often."

    On second thought, make that "hardly ever."

    The prisoner was Percy Dillon, sentenced in 1993 to 27 years in prison for trafficking in crack cocaine. Dillon was asking the Court to decide whether the U.S. Sentencing Commission had acted properly in limiting courts' ability to modify previously-imposed sentences in the wake of Congress' 2007 reduction in the crack guidelines. If Dillon lost his case, he would spend another three years in prison.

    Dillon seemed to strike Justice Kennedy as a particularly appealing candidate for clemency: his sentencing judge had called his original sentence "unfair" and "entirely too high," and Dillon had spent 16 years compiling an impressive prison record of educational outreach to fellow inmates and at-risk youth in the community.

    Getting no answer from the government to his question about the frequency of the Justice Department's clemency recommendations, Justice Kennedy observed that there had been no sentence commutations in 2009 and only five the year before. "Does this show that something is not working in the system?"

  • March 31, 2010

    A fragmented Supreme Court issued its opinion in the case of non-citizen Jose Padilla, who followed his attorney's advice to plead guilty for marijuana possession and was subsequently deported. Padilla, born in Honduras, has lived in the United States legally for over 40 years and served as a member of the U.S. Armed Forces during the Vietnam War.

    In Padilla v. Kentucky, the Court determined that trial attorneys have a constitutional obligation to inform their clients of the immigration-related consequences of a criminal conviction. The Court, however, did not throw out the petitioner's conviction based on ineffective assistance of counsel, setting aside the issue of whether Padilla was prejudiced by his counsel's shortcomings. Rather, the case was remanded to the Kentucky Supreme Court to resolve that question.

    "It is our responsibility under the Constitution to ensure that no criminal defendant -- whether a citizen or not -- is left to the 'mercies of incompetent counsel,''' Justice John Paul Stevens wrote for the five-justice majority.

    ''To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation,'' Stevens wrote. ''Our long-standing Sixth Amendment precedents, the seriousness of the deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less."

  • October 21, 2009
    Guest Post

    By L. Song Richardson, Assistant Professor of Law & Co-Director Center for Law and Science, Depaul University College of Law

    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.