First, today’s pet peeve. The past tense of the verb “plead” is “pleaded”, not pled. Fine, I’m a fuddy duddy who still uses a paper dictionary with letter tabs. And, yes, “pled” is a recognized colloquial usage. But, in the King’s English…
Yesterday, the Supreme Court issued its 7-2 ruling in the case of Padilla v. Kentucky. Many sources are reporting the result with accuracy and restraint. A few are going over the top. Some examples: “US Supreme Court Challenges Drug, Deportation Laws”, “watershed decision”, “tens of thousands will be affected”, impacts “12.8 million”. Here’s what really happened: conviction overturned based on ineffective assistance of counsel.
The facts are simple. Jose Padilla (not the “enemy combatant” Jose Padilla) is a legal immigrant of nearly forty years, an Army and Vietnam veteran, who worked as a truck driver. Marijuana was found in his load while driving through Kentucky. His attorney advised him to take a plea deal but incorrectly told him that it would not impact his immigration status. Federal law requires mandatory deportation for specified drug violations. Padilla accepted his attorney’s advice and pleaded guilty, finding out later that the advice about deportation was wrong.
Deportation of immigrants legally living in the United States has been recognized as a severe penalty since at least 1893. See, Fong Yue Ting v. U. S. In Haw Tan v. Phalen (1948) the Supreme Court called deportation of legal resident aliens a “drastic penalty”.
As noted in Justice Stevens’ majority opinion yesterday, the ABA professional standards, and a myriad of other legal publications and sources, have been instructing criminal defense lawyers for at least 15 years to advise legal aliens of the deportation ramifications of guilty pleas and convictions. Many courts around the country include deportation warnings in written documents that attend a guilty plea.
In this context the Supreme Court found that criminal defense attorneys have a professional obligation to inform their legal resident alien clients that pleading guilty may have deportation ramifications. They don’t even have to tell them what those ramifications are, just that the possibility exists.
The Sixth Amendment’s right to counsel has long been held to mean competent counsel. That an attorney who misadvises a client on a matter of critical importance to a case should be found to have engaged in the inadequate assistance of counsel is hardly watershed material, that will affect tens of thousands or impact 12.8 million. It is an important decision, consistent with more than a century’s worth of law in the areas of deportation and right to effective counsel.
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Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.