The Right to (Competent) Counsel

by Matt Kelley · 2009-10-18 10:29:00 UTC
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The U.S. Supreme Court heard arguments this week in the case of Jose Padilla, a legal U.S. resident originally from Honduras who was challenging a guilty plea in a drug case because his attorney incorrectly told him the guilty plea couldn't lead to deportation.

In oral arguments, the court's right-wingers immediately challenged Padilla's attorney on whether a decision in favor of Padilla might open what the sage Antonin Scalia called a "Pandora's box" of burdens on attorneys to make clients aware of every possible outcome of a conviction -- from child custody to driver's license. Padilla's advocate before the Supreme Court, Stephen Kinnaird, responded - correctly, I think -- that deportation is one of few ancillary punishments "so severe and so material in a high number of cases" that should qualify for special consideration. Also, it wasn't just that Padilla's original lawyer failed to advise him of the impact. Padilla asked, and the lawyer advised him incorrectly. He pled guilty based on false information.

This is a critical issue, because deportation adds an extra layer of punishment in many thousands of convictions each year, and the legal issues around this double-sentence have not been fully explored. An editorial yesterday in the LA Times agrees with Kinnaird:

Given the fact that thousands of immigrants are deported each year for criminal convictions, we would suggest a broader rule: A lawyer who represents an immigrant subject to possible deportation should have an affirmative obligation to know, and to tell his client, what the law is.

Here's more from SCOTUSblog on Padilla v. Commonwealth of Kentucky.

Photo by laura padgett

Matt Kelley is the Online Communications Manager at the Innocence Project and a graduate of the Medill School of Journalism at Northwestern University. Follow him on Twitter @mattjkelley.
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