Collateral consequences

Here courtesy of Sentencing Law & Policy:

This weekend’s must-read comes via this link at SSRN to a new piece by Margaret Colgate Love and Gabriel Chin concerning the Supreme Court’s important decision late last month in Padilla v. Kentucky.   "Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction."  Here is the abstract:

In Padilla v. Kentucky, 559 U.S. (March 31, 2010), the Supreme Court broke new ground in holding in a 7-2 decision that a criminal defense lawyer had failed to provide his noncitizen client effective assistance of counsel when he did not tell him that he was almost certain to be deported if he plead guilty.  It is the first time that the Court has applied the 1984 Strickland v. Washington standard to a lawyer’s failure to advise the client about a “collateral” consequence of conviction – something other than imprisonment, fine, probation and the like, that the court imposes at sentencing.  While Padilla’s implications for cases involving deportation are clear, it may also require lawyers to consider many other legal implications of the plea.

Within the military we have seen this issue applied to sex offender registration.

The Padilla decision clearly governs cases where a noncitizen is threatened with deportation on the basis of conviction.  But if that were all, it would not “mark a major upheaval in Sixth Amendment law,” as the concurring Justices warned.  While Padilla’s effects will be felt most immediately in the tens of thousands of criminal cases involving noncitizen defendants, defense lawyers must now concern themselves more generally with the broader legal effects of a criminal conviction on their clients.  The systemic impact of this new obligation cannot be underestimated. Padilla may turn out to be the most important right to counsel case since Gideon, and the “Padilla advisory” may become as familiar a fixture of a criminal case as the Miranda warning.

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