Realizing Padilla's Promise: Ensuring Noncitizen Defendants are Advised of the Immigration Consequences of a Criminal Conviction

Introduction I. How Padilla "Changed" the Sixth Amendment Duty Owed to Noncitizen Defendants A. Immigration Consequences and the Sixth Amendment Pre-Padilla B. The Padilla Decision C. Understanding the Importance of Padilla II. Padilla: The Good, The Bad, and the Potentially Ugly A. Padilla and Plea-Bargaining B. Padilla and Its Two-Tiered Admonishment Test 1. Defense Attorneys and Distinguishing the Two-Tiered Requirement 2. Determining Which Admonishment Defense Counsel was Required to Follow Under Padilla III. In the Aftermath of Padilla: Ensuring that Noncitizen Defendants Will be Advised of Immigration Consequences of a Criminal Conviction A. Enforcing a Duty for Defense Counsel to Give Specific Advice Through Legislative Enactments and Ethical Rules B. Imposing a Duty for Prosecution to Inform Defendants of the Immigration Consequences of Their Pleas C. Creating a Duty for the Court to Advise as to Immigration Consequences D. Public Defender Organizations, the ABA, and Other Advocates Conclusion INTRODUCTION On March 31, 2010, the United States Supreme Court decided Padilla v. Kentucky and created a Sixth Amendment duty for defense attorneys to warn defendants of the immigration consequences of a criminal conviction under the Sixth Amendment. (1) This decision followed decades of contrary precedent in which the majority of state and federal courts refused to create the duty under the Sixth Amendment in their jurisdictions. (2) Padilla is one of the most important Supreme Court decisions in recent years. It affords thousands of noncitizen immigrants a right that may protect their ability to remain in this country. (3) While Padilla affirmatively answered the broad question of whether a duty exists under the Sixth Amendment to advise a defendant of the immigration consequences of a criminal conviction, it also left many questions unanswered. One critical inquiry is the extent of the advice required by the Sixth Amendment under Padilla. The majority held that "counsel must inform her client whether his plea carries a risk of deportation." (4) In addition, the court determined that when immigration law is "succinct, clear, and explicit," defense counsel is required to give his or her client correct advice regarding the immigration consequences of a criminal conviction. (5) However, if immigration law is not "succinct and straightforward," defense counsel is only required to give general advice that the plea may have adverse effects on his/her immigration status. (6) The two-tiered advice system created by Padilla has three troubling effects. First, it creates considerable uncertainty as to what constitutes sufficient advice under the Sixth Amendment. Second, the level of information that must be provided by defense counsel to her client to satisfy the Sixth Amendment is based on immigration law and its perceived complexities instead of on the client's goals. Third, the ability for defense counsel to negotiate a favorable plea that could prevent removal is not guaranteed to all noncitizen defendants. This Article discusses the potential detrimental impact of Padilla's ambiguous holding and the creation of a two-tiered admonishment system on a defendant's ability to remain in the United States, as well as the confusion it causes for defense counsel and the court. Part I discusses the historical posture of a defendant's right to advice on the immigration consequences of a criminal conviction under the Sixth Amendment. Part II discusses the holding in Padilla, highlighting some of the key points that the case left unanswered and explores its potential failure to achieve the goal of assisting noncitizen defendants in preventing their removal from the United States. Part III suggests ways to ensure that all noncitizen defendants are given adequate counsel on the immigration consequences of criminal conviction. …