A Game Changer? The Impact of Padilla v. Kentucky on the Collateral Consequences Rule and Ineffective Assistance of Counsel Claims
Counsel Claims
Joanna Rosenberg 0
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Recommended Citation Joanna Rosenberg, A Game Changer? The Impact of Padilla v. Kentucky on the Collateral Consequences Rule and Ineffective Assistance of Counsel Claims, 82 Fordham L. Rev. 1407 (2013). Available at: https://ir.lawnet.fordham.edu/flr/vol82/iss3/7
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Article 7
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Joanna Rosenberg*
The Sixth Amendment entitles a criminal defendant to effective assistance
of counsel when deciding whether to plead guilty. Defense counsel,
therefore, must ensure that his client understands the direct consequences
of the plea: the nature of the criminal charge and the sentence. However,
pursuant to the traditional collateral consequences rule employed by most
courts, counsel has no Sixth Amendment obligation to warn that criminal
defendant of so-called collateral consequences, such as mandatory sex
offender registration, civil commitment, or ineligibility for parole. Prior to
2010, deportation was also considered a collateral consequence of a guilty
plea in most jurisdictions.
In Padilla v. Kentucky, the U.S. Supreme Court made deportation an
exception to the collateral consequences rule, and held for the first time
that counsel’s failure to advise a criminal defendant of the deportation
consequences of a guilty plea constitutes ineffective assistance of counsel.
Lower courts have differed on whether to interpret Padilla as effecting a
change to the collateral consequences rule, and more specifically, how to
define direct consequences, in the context of an ineffective assistance of
counsel claim. This Note examines the conflict, and concludes that courts
should redefine the scope of direct consequences in light of the factors
considered by the Court in Padilla.
* J.D. Candidate, 2014, Fordham University School of Law; B.A., 2009, Dartmouth
College. I would like to thank Professor Joseph Landau for his insight and guidance. I am
also grateful to my Mom, my Dad, and my brother Marc for their endless support and
encouragement.
TABLE OF CONTENTS
2013]
2. The Interpretive Gloss: Innovator Courts’ Assessment of Padilla......................................................................... 1437 III. RESHAPING THE DEFINITION OF DIRECT CONSEQUENCES IN LIGHT OF THE SUPREME COURT’S DECISION IN PADILLA V. KENTUCKY.. 1439
INTRODUCTION
Imagine that you are a noncitizen charged with a criminal offense. The
prosecution presents a plea bargain: you plead guilty in exchange for a
reduced prison sentence. Your case does not look promising, and the plea
bargain seems like a great offer. But is there a catch? An overwhelming
number of criminal offenses result in the deportation of noncitizens like you
Would you want your lawyer to tell you if accepting the guilty plea would
cause you to be deported? Almost certainly yes. But does your lawyer
have a constitutional duty to do this?
Until a few years ago, the answer was probably not. However, in Padilla
v. Kentucky,1 the U.S. Supreme Court held that an attorney’s failure to warn
his client that pleading guilty to a criminal drug charge would result in his
deportation constituted ineffective assistance of counsel in violation of the
Sixth Amendment.2 Recognizing the severity of a deportation
consequence, the Court determined that Padilla’s counsel failed to give him
the constitutionally adequate assistance required under the Sixth
Amendment’s Counsel Clause.3 This decision by the Padilla Court has the
potential to effect a sea change in ineffective assistance of counsel
jurisprudence.
The distinction between the direct and collateral consequences of a guilty
plea runs throughout both state and federal jurisprudence.4 Pursuant to the
collateral consequences rule, attorneys are constitutionally required to warn
their clients about direct consequences of a guilty plea, which typically
1. 559 U.S. 356 (
2010
).
2. Id. at 360.
3. Id. at 373–75.
4. Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the
Consequences of Guilty Pleas, 87 CORNELL L. REV. 697, 706–08 (2002).
relate to the nature of the criminal charge and sentencing.5 By contrast,
attorneys are not required to warn their clients about collateral
consequences, which are usually noncriminal in nature.6 Deportation, the
consequence at issue in Padilla, was traditionally considered a collateral
consequence of a guilty plea because it is a civil, not a criminal,
consequence.7 Therefore, prior to Padilla, counsel was not constitutionally
required to advise a criminal defendant of the deportation consequences of a
guilty plea in most jurisdictions. However, the Padilla Court cr (...truncated)