Collateral Damage

Upon hearing this term, many are reminded of the 2002 movie of the same title starring Arnold Schwarzenegger. Collateral damages, or collateral consequences, however, also refers to a legal issue that has been simmering for years: when, whether and how defendants should be informed about the collateral consequences of pleading or being found guilty.
Last month this issue was argued before the U.S. Supreme Court in the case, Padilla v. Kentucky.

Originally from Honduras, Jose Padilla is a legal permanent resident —not a citizen — who has resided in the United States for nearly 40 years, and served in the U.S. Armed Forces during Vietnam. In 2001, Padilla was indicted on three drug counts (two drug possession misdemeanors, and one drug trafficking felony) and one tax-related crime for an unmarked vehicle. Following negotiation, Padilla was informed by his lawyer that if he pled plead guilty to the drug offenses, the tax offense would be dropped. Before agreeing to the plea, however, Padilla asked his counsel whether his plea might have any consequences for his immigration status. His attorney assured him that he “did not have to worry about immigration status since he had been in the country so long.”. This, unfortunately, proved to be very inaccurate advice.

Following the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996, Padilla’s felony is considered an “aggravated felony” under the Immigration and Nationalization Act (INA). In addition, deportation following a guilty plea to such a charge was also made essentially mandatory by another statute enacted in 1996: the Illegal Immigration Reform and Immigration Responsibility Act.

Padilla to sought post-conviction relief to set aside the plea on the ground that he had received ineffective assistance of counsel. The Kentucky Supreme Court, by a vote of five to two, rejected Padillia’s request for relief and held that, even when mandatory, deportation is a “collateral consequence” of a conviction “outside the scope of the guarantee of the Sixth Amendment right to counsel.” This decision flowed from its earlier decision in Fuartado v. Commonwealth(2005), holding that attorneys have no duty to advise their client about the immigration consequences of a guilty plea.



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