From “Collateral” to “Integral”: The Seismic Evolution of Padilla v. Kentucky and Its Impact on Penalties Beyond Deportation

By McGregor Smyth.

From the moment of arrest, people charged with crimes find themselves caught in a web of punitive sanctions, in danger of losing their jobs, homes, children, and right to live in this country. Politicians over the past thirty years, eager to be “tough on crime” at the expense of being smart on crime, have piled layer upon layer of these “collateral” consequences on even a person’s most minor involvement in the criminal justice system.

As this web grew to overshadow the traditional criminal sanctions for most offenses, criminal courts and practitioners struggled to create legal justifications for ignoring it. The “collateral consequences” doctrine resulted. Arising out of Fifth Amendment challenges to convictions on the theory that courts had not adequately notified people of this web at plea or sentencing, this doctrine draws a sharp but false distinction between “direct” consequences of criminal proceedings (such as incarceration) and “collateral” consequences (such as deportation).

In a move last Term that shocked commentators and practitioners alike, the Supreme Court ignored decades of lower court case law to effectively repudiate this doctrine—which has been one of the most dominant (and most harmful) legal fictions of the criminal justice system. In Padilla v. Kentucky, 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 penalties intimately related to criminal charges. The Court’s recasting of Sixth Amendment jurisprudence will have significant ripple effects, leaving a rich set of legal issues for the courts to resolve in the coming years. These issues include those related to post-conviction relief, the Ex Post Facto Clause, Eighth Amendment definitions of punishment, the adequacy of defense funding, the expansion of the right to a jury trial, and the extension of the right to counsel.

This Article examines the practical effect of Padilla for criminal defense attorneys currently working with clients on pending cases. Post hoc analysis of the failure to advise a client on a particular penalty presents doctrinal and factual hurdles (particularly in proving prejudice). But the penalty itself is already identified because it forms the basis for the post-conviction challenge. Defense attorneys face a more significant challenge in the first instance—teasing the threads of relevant penalties and risks from the immense web of “collateral” consequences. This Article uses the legal reasoning of Padilla to outline a structure for approaching the daunting process of identifying and adequately advising clients about the wide range of penalties resulting from criminal justice involvement. The Article focuses not on post-conviction relief, but on productive and proven strategies for improved trial level advocacy going forward. Part I parses the decision and describes the peculiar character of Padilla as both a clear application of existing law and a revolutionary shift in perspective and daily practice. Part II details the clearly mandated application of Padilla’s Sixth Amendment advisement duty to a range of penalties beyond deportation. It describes a wide set of professional norms compelling this result, contrasted with the significant institutional incentives to ignore these standards. Part III proposes a new test to make these professional standards meaningful for practitioners in light of Padilla and the vast range of potential penalties for people charged with crimes. Part IV outlines the structure imposing these “enmeshed” penalties and discusses more concrete implications for realistic defense practice, including the benefits of holistic defense.

Read the article here: From Collateral to Integral Padilla