“Collateral” No More: The Practical Imperative for Holistic Defense in a Post-Padilla World”

By McGregor Smyth.

One warm night last summer, Terrence was hanging out with some friends on a South Bronx sidewalk when two police officers approached and forced them to empty their pockets. Terrence received a summons for having a marijuana cigarette. A month later he showed up in the criminal courthouse by Yankee Stadium to answer the charge. An attorney from the assigned counsel plan took one look at the summons, negotiated a quick deal, and Terrence pled guilty to a non-criminal marijuana offense and a fine, no jail time and no community service. It was a normal plea on a normal day. It took all of two minutes.

In those two minutes, Terrence, who was home from his first year in college, was effectively sentenced to expulsion from school. It did not matter that he was the first in his family to go to college, or that the immediate loss of his federal student loans for a year meant that his statistical chances of ever returning were virtually nonexistent. His attorney never thought to ask whether he received student loans. He did not know he had a readily-available, safe alternative that the prosecutor routinely offered. A little more than a year ago, this representation was legally acceptable.

The Supreme Court’s seminal decision last term in Padilla v. Kentucky capped over a decade of increasing focus on these so-called “collateral” consequences of criminal proceedings. The Court held that to provide effective assistance of counsel, a criminal defense attorney has an affirmative duty to give specific, accurate advice to noncitizen clients of the deportation risk of potential pleas. The majority’s analysis, however, reaches far beyond advice on immigration penalties, extending to any and all serious and likely penalties intimately related to the criminal charges.

This article begins with Terrence’s story because it illustrates the best motivation for defense work—not a Supreme Court decision or a list of professional standards, but the people we represent. Our high volume criminal justice system, defined by assembly-line pleas to minor offenses, tries its best to reduce people to defendants and cases and avoid any acknowledgment of the true damage it inflicts daily. The most powerful legacy of the Padilla decision is not its legal analysis of the duties of defense counsel, or even its repudiation of the legal theory of “collateral” consequences, at least in the context of the Sixth Amendment. The key to understanding the decision’s impact is much more basic –Jose Padilla is a man, not a case. Padilla reminds us of the advocate’s most effective strategy: humanizing the person he or she represents.

Padilla did not change our clients’ needs. Neither did it change the disturbing, lifetime impact of a single criminal charge. What it gave us is leverage–a powerful new constitutional leverage for promoting institutional change, increasing resources, and improving individual advocacy. A previous article laid out the first detailed legal analysis of the application of Padilla to a broad set of penalties beyond deportation. This Article serves as an advocacy companion, responding to the “embarrassing call to action” posed by Justice Alito’s recognition of widespread practice deficiencies. In short, this Article outlines a framework for how defenders can and should use Padilla as leverage to get better results.

Any discussion of changing defense practices must squarely address why defense attorneys must approach their work in a new way and how they can do it in our high-volume reality. Defenders must know that this approach works for clients, works for their practice or office, and is doable. Part I discusses the constitutional duties mandated by Padilla v. Kentucky and how embracing its most important lesson about great advocacy will drive and inspire better defense practice. Recognizing that constitutional mandates never sufficiently motivate change, Part II addresses the why, outlining the devastating impact of criminal charges on families and the measurable, improved outcomes that result from integrating knowledge of this damage into every stage of defense strategy.

Part III tackles the difficult question of how. Building on nearly fifteen years of proven results from an integrated model of defense services, this section details strategies for using knowledge of clients and these “collateral” consequences to obtain better outcomes in criminal cases from bail to plea to sentencing, manage risk, obtain more equitable discovery, and build better relationships with clients. Finally, the Supreme Court’s reminder that the client must be the central focus of defense advocacy lays the foundation for a more robust, holistic vision of the defense function. Part IV discusses the imperative for holistic defense in a post-Padilla world and outlines one proven model.