Glad to be wrong: Supreme Court rules immigrant/deportee did not have effective assistance of counsel

Images: Justice Stevens - Cubs fan; Justice Anthony Kennedy

Back in September I predicted that the U.S. Supreme Court would reject the argument that Jose Padilla, an alien and Vietnam veteran,  received ineffective assistance of counsel because his lawyer improperly advised him  him that he would not face deportation if he pled guilty to a Kentucky drug distribution charge:

I predicted the answer would be 

"NO [Even if defendant's attorney failed to tell immigrant Vietnam Vet and marijuana dealer that he faced deportation as a consequence of his guilty plea, that failing was collateral to guilt or innocence and is not comprehended by the 6th Amendment right to effective assistance of counsel.]"

As it happened only Justice Antonin Scalia  (joined by Thomas, J.)  took that position:

"The Sixth Amendment guarantees the accused a lawyer“for his defense” against a “criminal prosecutio[n]”—not for sound advice about the collateral consequences of conviction. For that reason, and for the practical reasons set forth in Part I of JUSTICE ALITO’s concurrence, I dissent from the Court’s conclusion that the Sixth Amendment requires counsel to provide accurate advice concerning the potential removal consequences of a guilty plea."

Instead the Court's opinion declared:

We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation. Whether he is entitled to relief depends on whether he has been prejudiced, a matter that we do not address.

Justice John Paul (we're going to miss you) Stevens placed an affirmative duty on counsel - at least in clear cases like this - to advise a defendant of the consequences of a guilty plea.  He was joined by Justices Kennedy, Breyer, Ginsburg and Sotomayor.  In dramatic language the majority declares:

The severity of deportation—“the equivalent of banishment or exile,” Delgadillo v. Carmichael, 332 U. S. 388, 390–391 (1947)—only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation.

A concurring opinion by Justice Alito  (joined by C.J. Roberts) lamented that the "half-way" affirmative duty to warn of clear immigration consequences left a troublesome gray area.

The decision shows again the power of Justice Anthony Kennedy.  Had he joined Alito and Roberts we would have had a four justice plurality without an affirmative duty of counsel to give the client advice about the "risk of deportation".


UPDATE
Jack Chin and Margaret Love have posted this piece on SSRN explaining that the implications of the affirmative duty of a criminal defense lawyer to warn of the immigration consequences of a criminal conviction will inform plea bargaining and grounds in the 6th Amendment right to counsel a  duty to counsel criminal defendants regarding collateral consequences of conviction.

John Yoo must answer civil rights suit by Jose Padilla

Judges at the trial level are taught to defer to those above. The habit of mind that tends to find a conciliatory approach, to reach for consensus, to narrow difference is deeply embedded in judical temperament. But choices must be made when adversaries press a point - as have the attorneys for plaintiff Jose Padilla, the al Qaeda supporter who suffered at the hands of captors whose methods were authorized by the opinions of high ranking lawyers in the United States Department of Justice - John Yoo, now a Berkeley law professor.

Jeffrey S. White, a federal judge of the Northern District of California, has confronted such a moment. He has allowed a "Bivens" civil rights action to proceed against the former Justice Department lawyer. 42 USC 1983, the post civil war statute authorizing lawsuits against oppression by state officials does not reach federal officers. For that the United States Supreme Court, in the landmark Bivens v. Six Unknwon agents of the Federal Bureau of Narcotics, said that the constitution itself authorizes a civil remedy. That 1971 opinion by Justice William Brennan is the foundation on which Padilla's complaint and White's opinion, rest.

Judge White recognizes the choices to be made. Here is his opening statement. A link to the full opinion follows.

[War] will compel nations the most attached to liberty to resort for repose and

security to institutions which have a tendency to destroy their civil and political

rights. To be more safe, they at length become willing to run the risk of being

less free.

The Federalist No. 8, at 44 (Alexander Hamilton) (E.H. Scott ed., 1898).

The issues raised by this case embody that same tension – between the requirements of war and the defense of the very freedoms that war seeks to protect. After the brutal and unprecedented attacks on this nation on September 11, 2001, the United States government responded to protect its citizens from further terrorist activity. This lawsuit poses the question addressed by our founding fathers about how to strike the proper balance of fighting a war

against terror, at home and abroad, and fighting a war using tactics of terror.

Padilla v. Yoo: Order Granting in part and Denying in Part Defendent's Motion to Dismiss

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Post-script:

Brian Tamanaha has a supportive summary of key elements of Judge White's ruling (e.g. on qualified immunity) , and many readers comment at Balkinization here. - gwc

PPS: John Yoo has filed his brief on appeal HERE