“Your argument has an appeal,” Justice Samuel A. Alito Jr. told Stephen B. Kinnaird, a lawyer for the defendant, “because removal is such a harsh consequence, particularly for someone like your client, who had been in the United States for a long time.”
The question in the case, Padilla v. Kentucky, No. 08-651, was whether bad legal advice about a collateral consequence of a guilty plea amounted to ineffective assistance of counsel under the Sixth Amendment.
The defendant, Jose Padilla, has lived in the United States for 40 years, served in the Vietnam War and is a legal permanent resident.
Mr. Padilla, a commercial truck driver, was arrested in 2001 after the authorities in Kentucky found more than 1,000 pounds of marijuana in his truck.
He pleaded guilty to marijuana trafficking, a felony, and received a five-year sentence.
Mr. Padilla, a native of Honduras, later said he had agreed to the plea based on his lawyer’s incorrect advice that it would not affect his immigration status. In fact, the plea made it all but certain that Mr. Padilla would be deported once he served his time.
Several justices said the case presented difficult line-drawing problems, including what to do about bad legal advice concerning the loss of a driver’s license or the right to vote.
“What about advice on whether pleading guilty would cause him to lose custody of his children?” Justice Antonin Scalia asked. “What if pleading guilty will affect whether he can keep his truck, which is his main source of livelihood?”
Mr. Kinnaird said the court could limit its ruling to affirmative advice, as opposed to failures to alert clients to potential problems, and to severe consequences.
Some justices indicated that it would be preferable to have trial judges make sure that defendants understand the consequences of their pleas rather than requiring criminal defense lawyers to give advice about matters outside their expertise.
Mr. Kinnaird said that his client, had he been properly informed, would have taken his chances at trial. He said it was not clear that prosecutors could prove Mr. Padilla knew he was transporting marijuana.
Wm. Robert Long Jr., an assistant attorney general in Kentucky, said Mr. Padilla should not be allowed to take back his guilty plea based on the bad advice he received.
“Sometimes criminal defendants risk ordinary errors with their representation,” Mr. Long said.
Justice Ruth Bader Ginsburg noted that an increasing number of crimes required deportation. “There is nothing mysterious about that,” she said. “There is nothing intricate about making that determination. So why wouldn’t a lawyer whose client is an alien have an obligation, when there is an aggravated felony as the charge, to say, ‘This will be the consequence’?”
The criminal defense lawyer’s job, Mr. Long responded, “is to ensure the
fair and just determination of guilt, not to advise on collateral matters
such as deportation, child custody and the like.”