Thoughts on Ten Years of Effectuating the Promise of Padilla v Kentucky

By Labe Richman 

A decade ago, when Justice Stevens issued his seminal decision in Padilla v. Kentucky, the obvious was finally acknowledged by the Supreme Court – that non-citizen defendants had the right to know the immigration consequences of their pleas of guilty.  Many members of the community may not have understood the unfair and tragic situation that existed before. Even when the prosecution’s evidence of actual guilt was weak, immigrants gave up their right to a trial and agreed to plead guilty based on the promise of just sentences. This promise often was entirely illusory. In many cases, when they were expecting probation, community service, a fine, counseling, or a vocational or drug program, the real penalty was undisclosed – mandatory banishment from everything they held dear to a country where they knew no one.    

Padilla did not just undo one unfairness in the criminal justice system, it changed the lives of thousands of people.  I have seen some of this firsthand. For example, a dentist from the Philippines allegedly treated his poor neighbors before he obtained his license. Instead of pleading guilty to practicing without a license (which is not a deportable offense), he agreed to plead guilty to illegal possession of Novocain without being warned that this was a deportable and inadmissible offense. A Padilla motion allowed him to switch his plea and stay with his family in the United States.  A similar situation occurred with an older woman whose daughter allegedly stole a prescription pad and used her mother’s Medicaid card to buy opioids in her mother’s name. Even though her mother was not actively involved in the charged crime, she agreed to plead guilty to a prescription dispensing offense without knowing it was deportable. Padilla allowed her to vacate that plea and switch it to illegal use of the Medicaid card which was not deportable for this elderly long-time legal permanent resident. 

Many criminal practitioners know where much of the drug war has hit – the young men making little money pitching drugs on the street who become “easy pickings” for law enforcement. I have had countless of these clients who have given up their right to a trial and agreed to plead guilty to drug sale offenses and who, as first offenders, have received probation. They had no idea those pleas would lead to mandatory deportation.  Padilla has allowed them to vacate their convictions and switch their pleas to drug-weight possession offenses at the exact same penal level and with the exact same sentences but without the curse of mandatory deportation.  

As one can see from these examples, Padilla does not mean that a noncitizen facing charges will not agree to plead guilty if the evidence warrants it. In fact, most convictions that are vacated based on Padilla never go to trial. Instead, once the lawyer and client know the immigration consequences, it is almost always possible to negotiate an alternative disposition that satisfies the court and prosecutor but has lesser or no immigration consequences. This just reinforces the ineffectiveness during the first plea because of the Padilla violation and saves the immigrant’s life with his family. 

Besides deficient immigration advice, to win a Padilla motion the individual must also show that such information would have had an impact on the result because the individual cared about staying in the United States.  This may include pointing to things like connections to the United States or readily available alternative pleas of guilty that were not sought as a result of counsel’s omission.        

In my experience, prosecutors have taken different approaches to the advent of Padilla. Some have focused entirely on protecting their convictions, opposing vacatur motions vigorously, and seeking waivers of Padilla rights. But, I have not once seen a plea proceeding where a defendant is actually told what his Padilla rights are – that he is entitled to advice from his defense attorney who can advise him of the immigration consequences of the conviction so as to inform him of what really lies ahead.   

But as to other prosecutors, Padilla has made them more sensitive to the fact that non-citizens caught in the criminal justice system may face immigration consequences that are vastly disproportionate to the criminal penalties involved.  For example, Kings County District Attorney, Eric Gonzalez, has set up a committee to review post-conviction motions for immigrants whose original plea dispositions turned out to be grossly unfair. On open cases, he has instructed his prosecutors to work with defense counsel in crafting dispositions that work for both the criminal justice system and the immigrant. In such cases, I have seen that the true promise of Padilla has been actualized and benefitted hundreds of individuals, many of them long-time residents who have U.S. citizen spouses, children, brothers, sisters and large extended families in this country.     

The American Bar Association’s prosecutorial standards have incorporated these sentiments, suggesting that prosecutors should consider immigration consequences in their charging and disposition decisions, and should consider flexibility in their responses to post-conviction motions. Standards 3-5.6(c), 3-4.4(a)(vi), 3-8.5, Criminal Justice Standards for the Prosecution Function (Fourth Edition, 2015).   

One of the main problems that my clients have faced is that there is no statute of limitations on the initiation of deportation proceedings.  Since their encounter with the law many years ago, they have married, had children, made close friends, developed businesses and careers, lost touch with their country of origin, and have become accustomed to calling the United States their home.  I have seen firsthand the sadness, frustration, and anxiety caused by efforts to rip them from the lives they and their families have built over so many years. But, it has been incredibly gratifying to see that Padilla and the changes in the system that the decision has engendered have saved many of my clients from an unnecessarily tragic and painful fate.

I have been honored to be a part of the effort to actualize the promise of Padilla, and, I am grateful to the Immigrant Defense Project for their help in reaching that goal. 

Labe Richman has been a criminal defense attorney for 37 years and now focuses on post-conviction work for immigrants.