December 14, 2011

Alice Clapman Explores the Consequences for Noncitizen Defendants Facing Removal Proceedings

Padilla v. Kentucky was a major victory for immigrants because the United States Supreme Court issued a decision that requires counsel to inform their non-citizen clients of any immigration consequences that would result from pleading guilty.

Jose Padilla was arrested in 2001 after authorities discovered more than 1,000 pounds of marijuana in his truck. Originally from Honduras, Padilla was afraid that pleading guilty would revoke his legal permanent residency in the United States and have him deported, but his attorney advised him otherwise. Padilla agreed to plead guilty; however, his plea made it certain that he would be deported once he completed his time served.

The Kentucky Supreme Court believed that Padilla’s Sixth Amendment right was not violated because they felt that his lawyer provided him with effective assistance. Advice about deportation was a “collateral” consequence, which the court did not consider to be required information disclosed to Padilla. The United States Supreme Court disagreed with the Kentucky Supreme Court, reversing and remanding the lower court's decision. “Constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation.” The United States Supreme Court issued a decision that requires counsel to inform their non-citizen clients about immigration consequences that would result post conviction.

While Padilla was viewed as a major development for immigrants, many challenges still exist for non-citizens within the United States Criminal Justice System. Immigration deportation has arisen within the last few decades because non-citizens have lacked the benefit of counsel. Director of the Immigrant Rights Clinic at the University of Baltimore School of Law, Alice Clapman, has recently written the article, Petty Offenses, Drastic Consequences: Toward a Sixth Amendment Right to Counsel for Noncitizen Defendants Facing Deportation, exploring the decision from Padilla and how it can be used to protect non-citizens with misdemeanors that cause immigration consequences.


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