Criminal Defense After Padilla v. Kentucky

In the three-and-a-half years since the Supreme Court recognized that the Sixth Amendment right to counsel requires advice about the deportation consequences of conviction in the landmark Padilla v. Kentucky, 130 S. Ct. 1473 (2010), courts and commentators have had a lot to say about its impact. Without question, nothing has been more important than the Supreme Court’s decision last term in Chaidez v. United States, No. 11-820, slip op. (U.S. 2012), in which the Court refused to apply Padilla’s holding retroactively.

Despite a second round at the Supreme Court, though, not much has appeared about what Padilla actually requires of criminal defense attorneys. To begin to fill that gap, I published Criminal Defense After Padilla v. Kentucky in the Georgetown Immigration Law Journal which looks closely at the Padilla decision itself as well as lower court interpretations. The justices, I write, appear concerned that long-time lawful permanent residents face the harsh consequence of deportation upon conviction without knowing so. As I explain in much more detail in the article, this motivation, read in the context of the INA’s crime-based removal provisions, sheds much light on what the Court expects that criminal defense attorneys will tell their clients and under what circumstances. Specifically, I conclude that the Court’s opinion suggests that crimes that likely constitute controlled substances offenses or aggravated felonies require clear, unequivocal advice that conviction will lead to deportation, while offenses that might constitute crimes involving moral turpitude require general advice only.

In a follow-up article published in the Maryland Law Review that I’ll post on Thursday, I explain why this is a problematic half-step toward recognizing the harsh reality of crImmigration law.

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