By Norman Reimer
In reflecting on Padilla v. Kentucky at ten years, it is clear that in one important sense it transformed defense practice. The fact that the Supreme Court has not to date fully confronted the constitutional implications of the myriad collateral consequences that flow from a criminal conviction beyond immigration consequences means that Padilla remains somewhat of an outlier. Despite that, this landmark decision heightened awareness and triggered a national movement that may eventually rein in the tyranny of collateral consequences.
There is no doubt that, for non-citizens, Padilla underscored the urgency of a transformation in criminal defense practice. Changes in the law that made deportation a mandatory consequence of certain criminal convictions in the years before Padilla had already started a movement to educate and enlighten criminal defense attorneys. The changes meant that no longer could one assume that a lawful permanent resident, even one with longstanding roots in the United States and an otherwise impeccable record, could avoid removal from the county. Groups such as the Immigrant Defense Project had already been working with defense groups to ensure that the defense bar fully appreciated the gravity of a criminal case when representing a noncitizen and the implications of choices such as whether to plead guilty, what sentence to seek, and whether to appeal. Padilla made it clear that an essential aspect of constitutionally effective assistance of counsel is the duty of counsel to at least inform a client of whether a guilty plea to a charge triggers the risk or certainty of deportation.
This awareness, in turn, led to more creative lawyering and effective advocacy. A lawyer’s ability to structure a plea to a charge that does not require removal, which is an essential element of effective practice in the post-Padilla era, has prevented countless thousands of long-time residents from being exiled from the United States. And now, “Crim-Imm” training is a staple of virtually all defense training throughout the nation. Many defender offices have immigration specialists on staff and the private bar, irrespective of whether representing a client by court appointment or by retainer, knows of the importance of addressing immigration consequences.
But neither in Padilla nor subsequently has the Court addressed a problem that for years had silently grown exponentially. Collateral consequences, the vast network of debarments, disabilities, and deprivations visited upon persons convicted of crime in this country, have created an immense underclass. These provisions extend across countless federal, state, and local statutes and regulations, but appear nowhere in the criminal law under which a person is sentenced. Thus, with little awareness at the time of a guilty plea, a convicted person can lose a panoply of rights beyond the loss of immigration status, including: voting rights, access to housing, jobs, student loans, family rights, the right to drive, countless professional licenses, the right to own a weapon, the right to hold office, and much more. Additionally, individuals are subjected to a cascading litany of fees, the non-payment of which can prompt other consequences. Yet, just as with immigration consequences, which sometimes can be quite arcane, this network of hidden penalties and secret sentences was not on the radar screen of most defense counsel and remained similarly obscure.
Padilla came to the Supreme Court after the Kentucky Supreme Court had ruled that “collateral consequences are outside the scope of representation required by the Sixth Amendment,” and therefore, the “failure of defense counsel to advise the defendant of possible deportation consequences is not cognizable as a claim for ineffective assistance of counsel.” The Supreme Court, however, in granting relief to Padilla, distinguished the “unique nature of deportation” from other collateral consequences and held that advice regarding deportation is not categorically removed from the ambit of Sixth Amendment law. This was a great step forward with respect to the rights of non-citizens to receive adequate counsel on the critical question of deportation consequences.
But in a real sense, Padilla was a narrow ruling because it did not define precisely what it is that makes a consequence so close to the criminal process as to implicate Sixth Amendment protections. The Court noted that it had never applied a distinction between direct and collateral consequences to define the scope of constitutionally reasonable assistance of counsel and declined to do so in Padilla because of the “close nexus between the criminal process and deportation.” But what about other consequences, such as the rights identified above? Why is advice concerning the implications for these other basic human and civil rights and privileges also not categorically exempt from the ambit of Sixth Amendment law?
Many hoped that Padilla would lead to further precedential decisions that would recognize that the inevitable loss of various other life-altering rights triggered by a criminal conviction also implicate Sixth Amendment protections. That has not happened. But, in elevating consequences to immigration status, an interesting phenomenon has occurred in the United States. There is now burgeoning recognition that the massive network of collateral consequences that flow from a criminal conviction must be dismantled.
In 2014, my own organization, the National Association of Criminal Defense Lawyers (NACDL), released a seminal report on this problem, which was based on two years of hearings conducted across the nation: Collateral Damage: America’s Failure to Forgive or Forget in the War on Crime – A Roadmap to Restore Rights and Status After Arrest or Conviction. Based on an initial project launched by the American Bar Association, there is a National Inventory of Collateral Consequences of Conviction (NICCC), which is now maintained by The Council of State Governments Justice Center.
Also in the space cataloging these pernicious consequences, there is the Restoration of Rights Project, which is a project of the Collateral Consequences Resource Center in partnership with NACDL, National Legal Aid & Defender Association, National HIRE Network, and Association of Prosecuting Attorneys. NACDL has also published Collateral Consequences of Criminal Convictions: Law, Policy and Practice (2018-19 Edition), by Margaret Colgate Love, Jenny Roberts & Wayne Logan.
Beyond that, countless groups from across the ideological spectrum are now working to unravel the devastating network of collateral consequences and promote various relief mechanisms to restore rights. There are groups working to restore voting rights, eliminate job and housing discrimination, limit offender registration requirements, and curtail the use of fines and fees, which lead to cycles of arrest, re- arrest, and re-incarceration. Many other groups are working to promote expungement and record sealing, while others are promoting much more robust use of executive clemency power to more robustly grant pardons. Indeed, in 2018, a number of these groups were represented and participated in a three-day convening sponsored by NACDL in Atlanta, Georgia, which is detailed in the 2019 NACDL Conference Report of the same name, Shattering the Shackles of Collateral Consequences: Exploring Moral Principles and Economic Innovations to Restore Rights and Opportunity.
Thus, Padilla both elevated advice concerning the immigration consequences of a criminal conviction to a constitutionally required aspect of the right to effective counsel and fomented a much-needed national reform movement to address the many other injurious, unjust, and often irrational collateral consequences of criminal convictions.
In the end, eliminating these deleterious consequences may be more important than constitutionalizing the right to adequate advice about them. And that goes for immigration status as well. People who in the past have contributed to society, and can again, should neither be banished nor indefinitely stripped of invaluable rights as a mandatory consequence of a criminal conviction.
Norman Reimer is the Executive Director of the National Association of Criminal Defense Lawyers (NACDL).