Victory in Padilla v. Kentucky: Supreme Court Rules That Criminal Defendants Are Constitutionally Entitled To Immigration Advice

In a resounding victory for the Constitution, the Supreme Court today reaffirmed that the guarantee of fundamental fairness in our Nation’s courts applies to non-citizens and citizens alike.  In Padilla v. Kentucky, the Court ruled that a lawyer has a constitutional obligation to tell an alien charged with a crime that a guilty plea could result in deportation.  The result in the Court was 7-2, with Justice Stevens writing for the majority and joined by Justices Kennedy, Ginsburg, Breyer and Sotomayor.  Justice Alito, joined by Chief Justice Roberts, concurred in the result, and Justice Scalia, joined by Justice Thomas, dissented.  CAC urged the result reached by the Court today and applauds the Court’s ruling. We are dismayed, however, by the dismal view of the Constitution and the meaning of justice presented in the dissent.

In a text and history brief filed in Padilla, CAC demonstrated that the Fourteenth Amendment’s framers were concerned with securing robust due process protections for all persons in the United States, regardless of immigration status.  The petitioner here, Jose Padilla, had been a lawful permanent resident of the United States for almost 50 years, serving honorably in the military and building a life in this country.  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.

The Supreme Court got it right today when it held that non-citizens who have been accused of crimes have a constitutional right to accurate legal advice regarding the immigration consequences of a guilty plea.  As Justice Stevens explained in the Court’s opinion, our immigration laws have changed dramatically over the last several decades, making many more criminal convictions grounds for virtually automatic deportation and greatly raising the stakes for non-citizen criminal defendants.  Indeed, as Justice Stevens noted, for many non-citizens the immigration consequences of a conviction may be far more important than any resulting criminal sentence.  Accordingly, it is vitally important that non-citizens accused of crimes receive correct legal advice regarding the immigration consequences of a conviction.  Today’s ruling requiring counsel to give accurate advice as to the immigration consequences of a guilty plea is therefore a huge victory, with significant, real-world ramifications for individuals and families across the country.

In a dissent, Justice Scalia, joined by Justice Thomas, claims that this ruling is contrary to the text and purpose of the Constitution.  They could not be more wrong.  As Justice Stevens so eloquently explained in his majority opinion, it is the Court’s responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the mercies of incompetent counsel.

Justice Scalia’s dissent offers a disturbing countervision of what the Constitution requires for our justice system.  Noting that the bare text of the Sixth Amendment only requires a criminal defendant to have “the Assistance of Counsel” for his defense, Justice Scalia interprets this text to mean only that a person accused of a crime has a right to hire a lawyer or use a lawyer who has volunteered his or her services.  He notes that the Court has since held that this guarantee of counsel requires effective assistance of counsel and that counsel must be appointed to represent those who cannot afford a lawyer, but Justice Scalia clearly suggests that these important precedents are not compelled by the text and purpose of the Constitution.  He goes so far as to say that he will, for the purposes of this case, “assum[e] the validity of these holdings,” apparently  suggesting that he does not, as an initial matter, consider these well-established precedents valid.

That is a frightening proposition—one that Justice Scalia’s fellow conservatives, Chief Justice Roberts and Justice Alito, declined to embrace today.  Justice Alito, joined by Roberts, wrote a concurring opinion that agreed with the majority’s result but took a narrower approach than did Justice Stevens’s opinion.  Rather than hold that counsel has an affirmative duty to inform a non-citizen defendant that a guilty plea could lead to automatic deportation, Alito and Roberts would have held that counsel only has a duty to refrain from giving incorrect advice regarding the possibility of deportation and advise a defendant that the conviction may carry immigration consequences, which the alien should discuss with an immigration attorney if he or she has questions.  The fact that Justices Scalia and Thomas were not willing to join their conservative colleagues even in this narrow view is troubling—after all, if the constitutional right to assistance of counsel doesn’t include the right not to be directly misled about as drastic a consequence of a guilty plea as deportation, that guarantee certainly has limited meaning.

But our Constitution is not meaningless.  The Fourteenth Amendment, which applied the Sixth Amendment right to assistance of counsel to criminal proceedings in state courts, guarantees effective assistance of counsel whenever a person—citizen or not—stands accused of a crime.   The framers of the Fourteenth Amendment sought to ensure that “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.”  With the Court’s ruling today, that constitutional promise will be honored for Mr. Padilla and countless others.

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