Thursday, April 1, 2010

Supreme Court: Effective Assistance of Counsel and Deportation

In a much awaited decision, the United States Supreme Court ruled yesterday that the constitutional right to the effective assistance of counsel in criminal cases requires that defense counsel advise a noncitizen defendant that if he pleads guilty the plea carries the risk of deportation from the United States. The decision, Padilla v. Kentucky, can be found here.

In the past, many courts across the country had taken the view that because the deportation consequence of a guilty plea is a matter "collateral" and not directly related to the criminal case, defense counsel had no obligation to advise his client of the possibility, or in many instances, the certainty, of deportation.

Padilla concludes, however, that because deportation is an "integral part" of the penalty a defendant who pleads guilty faces, and because deportation is "intimately related to the criminal process,'' the collateral versus direct distinction is not appropriate in the deportation context.

Significantly, Padilla rejects the established New York view that because deportation is a "collateral" consequence of a guilty plea, defense counsel is under no obligation to inform the defendant of the possibility of deportation. That view, expressed in People v. Ford, 86 N.Y.2d 397 (1995), cannot survive Padilla. In my opinion, the Supreme Court has gotten it exactly right.

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