Imposing criminal punishment is the province of the criminal justice system, but how cases are resolved within that system inevitably can affect rights and benefits beyond it. Congress and state legislatures often attach additional legal consequences to criminal activity. At times, these consequences may be at least as significant as a potential fine or incarceration. Deportation of a noncitizen (a term synonymous with "alien") under federal immigration law is a case in point. Nevertheless, a noncitizen charged with a crime may not be fully aware of what is at stake before going to trial or deciding to plead guilty to a particular offense. This report discusses the extent of deportation-related advice a noncitizen defendant is constitutionally owed in deciding whether to plead guilty to a particular crime. Two possible doctrinal bases for a right to be advised are the Due Process requirement that a guilty plea be voluntary and the Sixth Amendment right to effective assistance of counsel. The Supreme Court had not found that either basis required advising noncitizen defendants on deportation, however, and a distinction in the Court's jurisprudence between direct and collateral consequences of criminal conviction potentially precluded finding any constitutional right. Then, in Padilla v. Kentucky , the Court found a right to be advised of possible deportation grounded in the Sixth Amendment right to effective assistance of counsel. The holding in Padilla is discussed below, as are its possible implications. Also mentioned are steps that have been taken by courts and legislatures, constitutional requirements aside, to integrate consideration of immigration consequences into the criminal process. When an accused is a noncitizen, one especially momentous result of prosecution is possible deportation. For decades now, Congress has placed priority on the removal of criminal aliens from the United States. One result of this effort has been a significant statutory expansion of the list of felonies and other offenses (especially those types of federal and state crimes categorized as aggravated felonies under the Immigration and Nationality Act of 1952 (INA), as amended) that lead to swift and increasingly certain deportation following criminal imprisonment. If a noncitizen accused of a serious crime is to avert deportation, therefore, the primary legal arena for attention has become the criminal justice system rather than the immigration adjudication system, even though the latter formally adjudicates and issues removal orders. Two things should be kept in mind in this context. First, the United States has a large noncitizen population. Roughly 25.5 million people residing in the United States in 2008, or around 8½% of the population, were noncitizens, according to one leading authority. The exact number of noncitizens who are charged with a crime is not known, but it would appear that many thousand noncitizens pass through criminal courts each year. During FY2008, over 97,000 criminal aliens were removed from the United States, over one-third of these for drug-related offenses. During the same period, the Criminal Alien Program, a cooperative federal-state law enforcement effort, issued 221,085 charging documents, the first step in removal proceedings, against criminal aliens incarcerated in federal, state, or local facilities. The second observation concerns how criminal cases are in fact resolved. The criminal grounds for removal are premised on a "conviction," and in the United States convictions most commonly take the form of guilty pleas. Guilty pleas are the mainstay of the American criminal justice system. In 2004, they comprised 95% of state felony convictions, 96% of state felony drug convictions. In federal courts, 96% of the defendants whose cases were resolved through conviction in the year beginning June 2007 pleaded guilty. Thus, one commentator has observed the following about the modern role of a criminal defense lawyer: The most important service that criminal defense lawyers perform for their clients is not dramatic cross-examination of prosecution witnesses or persuasive closing arguments to the jury; it is advising clients whether to plead guilty and on what terms. More than ninety percent of dispositions on the merits of criminal prosecutions are convictions, and more that ninety percent of convictions result from guilty pleas. Accordingly, the accuracy and fairness of the criminal justice system depend principally on the actions of defense lawyers, prosecutors, and judges at the guilty plea stage. In Hill v. Lockhart , the Supreme Court recognized the significance of counsel at the pleading stage, holding that the Sixth Amendment grants clients the right to effective assistance of counsel when pleading guilty. Jose Padilla had been a legal permanent resident of the United States when he was pulled over by Kentucky authorities at a weigh station for failing to have a weight and distance number on his truck. A subsequent search of the truck revealed approximately 1,000 pounds of marijuana, and Padilla was charged with drug trafficking. He pleaded guilty to three charges, trafficking in more than five pounds of marijuana among them. Two years later, in August 2004, Padilla filed a petition with the Kentucky courts alleging ineffective assistance of counsel. He asserted that his attorney had failed to adequately investigate and advise him on the possible immigration consequences of his guilty plea, but instead, according to Padilla, said that Padilla "did not have to worry about [his] immigration status since he had been in the country so long." Padilla further claimed that he would not have pleaded guilty as he did, had he known of the possibility of deportation. The Hardin County Circuit Court ruled against Padilla, holding that advice (or failure to advise) on deportation cannot give rise to a claim of ineffective assistance of counsel in a criminal case. The Kentucky Court of Appeals reversed, finding further proceedings were warranted by the allegation that affirmative misadvice had been given. The Kentucky Supreme Court reversed the Court of Appeals, concluding that neither a failure to advise nor misadvice on deportation could support an ineffective assistance of counsel claim. Padilla submitted a petition for a writ of certiorari to the United States Supreme Court, which granted the writ and heard oral argument October 13, 2009. It was evident in the pleadings and oral argument that the Court's decision in Padilla depended on what it conceived to be the reach of defense counsel's obligations under the Constitution. Must defense counsel ever advise a client about matters not immediately before the criminal court as a predicate to the client pleading guilty? If so, what breadth of expertise is expected? Is there a distinction between failing to advise a client and misinforming a client? The Sixth Amendment includes an express right to counsel among other procedural protections it confers to criminal defendants: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed ... and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense . (emphasis added) The Court has long held that "Assistance of Counsel" meant effective assistance of counsel, but it had not explored what "defense" entailed. The text of the Sixth Amendment suggests the assistance due under it is discrete in scope. The Amendment pertains in a "criminal prosecution," the process by which the government moves against a person before a court of law for specified criminal acts. Certainly, other rights afforded an accused in the Amendment—speedy trial, jury trial, knowledge of the accusation, confrontation of witnesses, compulsory process—all address the fairness and integrity of this adversarial effort to convict and impose punishment. Though the Supreme Court had not set a clear precedent, the prevailing test for "ineffective assistance of counsel" in plea cases appeared to many to be bound by a tight focus on criminal jeopardy alone. The critical distinction was between "direct" and "collateral" consequences of prosecution. In the context of guilty pleas, the most apparent direct consequence is the punishment that can be imposed, but even here, it may be uncertain how far the duty to advise extends beyond potential maximum sentences, and possibly mandatory minimums, to more nuanced matters involving possible parole and probation. Collateral consequences, by contrast, are more diverse, and can include, in addition to possible conditions on how sentences may be served, such eventualities as loss of the right to vote, loss of a passport, loss of the right to possess firearms, loss of public employment or public benefits, loss of professional or business licenses, possible civil liability, possible enhanced punishment for future crimes, and an obligation to register as an offender. Immigration consequences of a conviction, including deportation, also were regarded as collateral, because they were not immediately imposed as punishment by a convicting court. The direct versus collateral consequence distinction made in many "ineffective assistance" cases under the Sixth Amendment would appear to have migrated from case law on the requirement of a court to inquire into whether a guilty plea is voluntary for purposes of meeting a defendant's due process rights under the Fifth and Fourteenth Amendments. Those cases drew a line past which the court was not obligated to inquire into a defendant's motives for pleading guilty or the defendant's expectations on how a sentence would be carried out. Absent improper coercion or deceit, a knowing "plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitment made to him by the court, prosecutor or his own counsel, must stand...." Though "ineffective assistance" analysis in plea cases might have appeared to have become tethered to the voluntariness test applied in due process cases, the Court did develop distinct standards for Sixth Amendment challenges. The seminal case is Strickland v. Washington . The Strickland Court began its analysis with an observation reminiscent of due process cases. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." The Court then continued to speak of defense counsel's role in the adversarial process, but in doing so began to relate adequacy of counsel to prevailing standards of representation instead of exclusively to fairness of result.