Wednesday, March 31, 2010

It’s only too hard for you.

Even though I actually went downtown today and even had lunch at La Loggia, I didn’t come across anything weird or strange. So, chew on this:

The Supreme Court decided today by a 5-4 vote that José Padilla’s lawyer could and should have advised him regarding the immigration consequences of pleading guilty. This José Padilla was not born in the United States. He pled guilty to a drug crime but claimed his lawyer told him that the plea would not affect his permanent residency. (Ha!) Justice Stevens lets you know how this is going to turn out in his opening lines:
Petitioner Jose Padilla, a native of Honduras, has been a lawful permanent resident of the United States for more than 40 years. Padilla served this Nation with honor as a member of the U. S. Armed Forces during the Vietnam War.
OK, got it, he wins. navy.jpg(J.P.S., by the way, served in the Pacific from the time he was 22 to the time he was 25. It freaks out the law students when I tell them, “When Stevens was your age, he was fighting the Japanese.” I think they have trouble comprehending that anyone who fought in WWII is still alive, much less holding down a job, much less writing opinions.)

Skipping ahead, we find that four Justices of the Supreme Court do not believe that a defendant’s counsel should try to explain the immigration consequences of pleading guilty because it’s too hard. Alito and Roberts say in their concurrence that defense lawyers would be better off saying nothing more than that adverse immigration consequences may result: “Because many criminal defense attorneys have little understanding of immigration law, it should follow that a criminal defense attorney who refrains from providing immigration advice does not violate prevailing professional norms.” And Scalia and Thomas go even further and say that anything other than the sentence is beside the point:
In the best of all possible worlds, criminal defendants contemplating a guilty plea ought to be advised of all serious collateral consequences of conviction, and surely ought not to be misadvised. The Constitution, however, is not an all-purpose tool for judicial construction of a perfect world ... .
How this was not 9-0 entirely escapes me. How is banishment not a criminal penalty? Wasn’t exile to Siberia a favored punishment of the czars or am I misremembering something? Is this supposedly not punishment because it’s specified in Title 8 rather than Title 18? The more offensive part of this is that the Justices never disclaim expertise over any corner of the law comprised by their vast general jurisdiction. They have no trouble grasping the finer points of criminal law and immigration law as well as patent law, military law, antitrust, bankruptcy, labor, tax, admiralty, whatever. But that’s Alito, Scalia, Roberts, and Thomas—not you.


Anonymous said...

duh. of course they should get that advice, as in fact it is commonly something that a plea colloquoy is supposed to address. The question here is whether the failure to do so constitutes such ineffective assistance as to violate the constitution. I think not, though reasonable minds may disagree.

Jake Moses said...

I gotta admit . . . I'm pretty dumb.

Anonymous said...

I think as a practical matter, this opinion will have little day-to-day effect. Most criminal defense lawyers, especially in an area like Miami, already advise their clients about the potential immigration consequences of a conviction; some going so far as to consult immigration counsel. In most cases, this does not deter a plea because defendants are--not surprisingly--more immediately concerned with reduced jail time versus the greater exposure that usually occurs after trial. Further, most judges already inform defendants during a plea colloquy of the potential immigration consequences of a conviction.

Unlike the right to vote and the right to possess a firearm, immigration status is a privilege not a right. As such it's a bit odd that the Court would view immmigration status, for all intensive purposes, as on par with firearm possession and the right to vote for purposes of the duty-to-inform on the part of defense counsel when representing a criminal defendant.

Finally, EVEN IF a defendant is found not guilty that does not bar immigration proceedings to remove him or her for the alleged/ acquitted/dismissed criminal conduct based on a lower evidentiary threshold in immigration proceedings (this is what's usually referred to as the "reason to believe" ground for removal/deportation).

What do you think Prof?