The Argument in Padilla v. Kentucky

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.

Failure to Investigate and Advise

Both Assistant Attorney General Robert Long for the State of Kentucky and Michael Dreeben for the United States urged the Court to create a per se rule in the ineffective assistance of counsel context. They argued that the Sixth Amendment never requires defense lawyers to advise clients regarding the collateral consequences of a guilty plea. Justice Stephen Breyer called the desire for a rule "radical" and pushed Long on the outer limits of the proposed rule. What should a lawyer do, he asked, if he learns that a guilty plea to a minor offense would result in the client's deportation and possible death? Should the lawyer "[j]ust sit there and say nothing?" Long replied that while most decent and moral lawyers would disclose that information to a client that does not make disclosure of immigration consequences a Sixth Amendment requirement.

Petitioner's counsel, Stephen Kinnaird, while not conceding that deportation is a collateral consequence, argued that the Court should not adopt a per se rule that advice regarding collateral consequences should fall outside the ambit of the Sixth Amendment. Rather, courts should simply decide all failure to advise claims by applying the traditional objective reasonableness test of Strickland in a case-by-case and context determinative manner. He further argued that prevailing professional norms require defense counsel to investigate and advise non-citizen defendants about the potential immigration consequences of a guilty plea.

Affirmative Misadvice

Mr. Long was alone in his argument that for Sixth Amendment purposes, giving materially incorrect advice on a collateral matter is no different from failing to advise. According to Long, neither are cognizable Sixth Amendment claims. Long's position on the limited scope of Sixth Amendment protection for defendants was highlighted in his response to a hypothetical posed by Justice Samuel Alito: Suppose a defense lawyer falsely represents to his client that a plea will not result in deportation. Moreover, the lawyer discourages his client from retaining competent immigration counsel by stating that he is an immigration expert. If the client pleads guilty in reliance on the lawyer's representation and finds himself facing deportation, would he have a cognizable Sixth Amendment claim? Long answered that the Sixth Amendment would provide no basis for relief because "criminal defendants risk ordinary error with their representation." Both the Government and Mr. Kinnaird argued that material misadvice claims should be cognizable under the Sixth Amendment.


Padilla v. Kentucky has the potential to define the scope of the right to the effective assistance of counsel in the guilty plea context that will have consequences for citizens and non-citizens alike. Ultimately, however, the Court might avoid the difficult and thorny issues the case raises by finding that Mr. Padilla cannot establish that he suffered prejudice; he cannot demonstrate that a rational defendant would have insisted on going to trial had he received accurate advice.