Georgia Criminal Lawyer Blog

The United States Supreme Court has decided in a 7-2 decision that a criminal defendant’s counsel must inform his or her client whether their guilty plea carries a risk of deportation.  Jose Padilla, a native of Honduras, had lived legally in the United States for forty years. He was arrested in Kentucky with a large amount of marijuana in a tractor-trailer he was driving. Mr. Padilla was charged with drug offenses that would make his deportation almost a certainty.

When Mr. Padilla asked about the consequences of pleading guilty he was told by his lawyer that he did not need to worry about his immigration status since he had been in the country for so many years. When he faced deportation, Mr. Padilla argued that he pleaded guilty only because of that erroneous advice. The Supreme Court of Kentucky in rejecting his claim said Mr. Padilla’s right to effective assistance of counsel did not apply because deportation was merely a “collateral” consequence of his conviction.

Justice John Paul Stevens, writing for a 5-member majority, said judges used to have considerable discretion about whether a noncitizen should be deported after being convicted of a crime. Because much of that discretion has been taken away, correct legal advice is more important than before for immigrants. Justice Stevens said it was wrong to dismiss deportation as a “collateral” issue because deportation is nearly automatic in many cases.

Justice Alito issued a concurring opinion, joined by Justice Roberts. They would have limited the rule to prohibit only completely incorrect legal advice. Justice Scalia dissented, joined by Justice Thomas, writing that the Sixth Amendment guarantees the defendant a lawyer only for the defense of the criminal case and not for advice regarding any collateral matters.

Padilla v. Kentucky is available here