by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

Today, CAC filed a brief in the Supreme Court case of Padilla v. Commonwealth of Kentucky in support of robust due process protections for immigrant criminal defendants.

Padilla raises the question whether the constitutional right to effective assistance of counsel includes advice regarding automatic deportation as a result of a criminal conviction. The petitioner, Jose Padilla, had been a lawful permanent resident of the United States for almost 50 years. He defended our country during the Vietnam War and built a life in the United States. Accordingly, when he ran into trouble with the law and was considering pleading guilty to a five-year jail term for a non-violent drug offense, he was particularly concerned with his immigration status. His lawyer told him that he did not need to worry about being deported because he had been in the country for so long. This advice was completely wrong—in fact, Mr. Padilla faced automatic deportation as a result of his guilty plea. Mr. Padilla has argued to the Supreme Court that he would never have pleaded guilty had he known the true immigration consequences of his plea—opting instead to take his chances at trial or attempt to negotiate a better plea bargain—and that his lawyer’s blatantly incorrect advice falls below the constitutional minimum required for effective assistance of counsel.

CAC’s brief supports Mr. Padilla by laying out the text and detailed history of the Fourteenth Amendment’s Due Process Clause, which applied the Sixth Amendment’s guarantee of assistance of counsel to the States. In the vision of our Reconstruction framers, “no man, no matter what his color, no matter beneath what sky he may have been born . . . shall be deprived of life, liberty, or property without due process of law.” Cong. Globe, 39th Cong., 1st Sess. 1094 (1866). This framing vision, and its manifestation in the Due Process Clause, mandates that the Sixth Amendment right to counsel in criminal proceedings, incorporated as to state proceeding through the Fourteenth Amendment, is not diminished when a non-citizen defendant stands accused in our criminal justice system. The Supreme Court of Kentucky’s ruling—that counsel’s advice at the plea stage regarding likely deportation is outside the scope of the Sixth Amendment—cannot be squared with this constitutional first principle. Our brief shows that the framers of the Due Process Clause were particularly concerned that non-citizens get a fair shake in state criminal courts and argues that what happened to Mr. Padilla cannot possibly fit within the framers’ constitutional vision.