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Daniel Kanstroom THE RIGHT TO DEPORTATION COUNSEL IN PADILLA V. KENTUCKY: THE CHALLENGING CONSTRUCTION OF THE FIFTH-AND-A-HALF AMENDMENT * Daniel Kanstroom The U.S. Supreme Court’s pathbreaking decision in Padilla v. Kentucky seems reasonably simple and exact: Sixth Amendment norms were applied to noncitizen Jose Padilla’s claim that his criminal defense counsel was ineffective due to allegedly incorrect advice concerning the risk of deportation. This was a very significant move with virtues of both logic and justice. It will likely prevent many avoidable and wrongful deportations. It may also help some deportees who have been wrongly or unjustly deported in the past. However, the apparent exactness of the case, as a Sixth Amendment decision, raises fundamental constitutional questions. For more than a century, courts have formalistically distinguished between two consequences of criminal convictions: the punishment meted out in criminal courts and deportation. The former is, of course, a criminal sanction, while the latter is said to be civil or, at most, quasi-criminal. This Article suggests that Padilla has implicitly challenged this model with potentially powerful consequences. Padilla cannot be squared with the historical, formalist relegation of deportation to the realm of civil collateral consequences in which there is no clear constitutional right to counsel. This Article thus seeks to elucidate how the Padilla opinion might model a viable constitutional reconciliation between the Court’s historical formalism and its current realism. This model bridges Fifth and Sixth Amendment jurisprudence and limns a new constitutional norm for deportation that we might call the Fifth-and-a- Half Amendment (Amendment V½). It embodies both the flexible due process guarantees of the Fifth Amendment and—at least for certain types of deportation— the more specific protections of the Sixth Amendment. Amendment V½ is certainly not a perfect solution. However, so long as deportation is formalistically understood as civil and nonpunitive while, in reality, being directly tied to the criminal justice system and highly punitive in effect, it is a legitimate and necessary construct. * Professor of Law and Director, International Human Rights Program, Boston College Law School. Thanks to Paulo Barrozo, Michael Cassidy, Julie Dahlstrom, Benjamin Kanstroom, and Symposium participants for helpful critique and commentary. Thanks, as well, to my colleagues at Boston College Law School who attended my presentation on this Article and to Dean John Garvey and Interim Dean George Brown for research support. I am also deeply grateful to the organizers of this Symposium and to the editors of the UCLA Law Review for their hospitality, clarity of purpose, thorough edits, and helpful suggestions. 1461 1462 58 UCLA LAW REVIEW 1461 (2011) INTRODUCTION ........................................................................................................................ 1462 I. THE CONSTITUTIONAL BASICS ...................................................................................... 1464 A. The Court’s Sixth Amendment Realism .............................................................. 1466 B. The Role of Counsel and Constitutional Framing ............................................... 1467 C. The Fifth-and-a-Half Amendment ........................................................................ 1472 II. THE FACTS AND ISSUES PRESENTED TO THE SUPREME COURT .................................... 1478 III. READING THE SUPREME COURT’S PADILLA OPINION(S) .............................................. 1480 A. Justice Stevens’s Majority Opinion ........................................................................ 1480 1. Is (“Automatic”) Deportation “Collateral”? ................................................. 1480 2. Misadvice Versus No Advice ......................................................................... 1483 3. “Virtually Inevitable” Deportation and the Powerful Recognition of Convergence ............................................................................................... 1485 4. A More Formalistic Reading? ......................................................................... 1487 B. The Concurrence .................................................................................................... 1490 C. The Dissent .............................................................................................................. 1492 IV. PONDERING AMENDMENT V½ AFTER PADILLA ............................................................ 1494 A. Amendment VI: Apparent Simplicity and Real Complexity ............................. 1494 B. Amendment V: The Civil Nature of Deportation and the Due Process Model .......................................................................................................... 1500 C. Amendment V½ ..................................................................................................... 1504 1. Does Amendment V½ Make Sense? ............................................................. 1504 2. Does Amendment V½ Make a Difference? .................................................. 1509 CONCLUSION ............................................................................................................................ 1513 “We are a nation of immigrants, dedicated to the rule of law . .”1 “[T]he Court should devote some attention to bringing its Fifth and Sixth Amendment jurisprudence into a logical alignment . .”2 INTRODUCTION Deportation law has long been a rather challenging enterprise. Courts navigate gingerly between restrictive, formalist doctrines and compelling claims of basic human and constitutional rights. It is therefore unsurprising that the apparently straightforward majority opinion in Padilla v. Kentucky3 illustrates the tension between two well-known legal maxims. The U.S. Supreme Court “cannot escape the demands of judging or of making the difficult appraisals 1. Hon. Barbara Jordan, August 1995, quoted in U.S. COMM’N ON IMMIGRATION REFORM, BECOMING AN AMERICAN: IMMIGRATION AND IMMIGRATION POLICY (Sept. 30, 1997), available at http://www.utexas.edu/lbj/uscir/becoming/full-report.pdf. 2. McNeil v. Wisconsin, 501 U.S. 171, 183 (1991) (Kennedy, J., concurring). 3. 130 S. Ct. 1473, 1478 (2010). The Fifth-and-a-Half Amendment 1463 inherent in determining whether constitutional rights have been violated.”4 On the other hand, as Justice Holmes once noted, “delusive exactness is a source of fallacy throughout the law.”5 The case involved the important problem of how criminal defense counsel ought to deal with deportation consequences. The Court’s basic, pathbreaking holding seems reasonably simple and exact, and it surely made a “difficult appraisal”: The Sixth Amendment norms of Strickland v. Washington6 were applied to noncitizen Jose Padilla’s claim that his criminal defense counsel was ineffective due to allegedly incorrect advice concerning the risk of deportation. Contrary to the opinion of the Kentucky Supreme Court (and others),7 such advice on deportation was not “categorically removed from the ambit of the Sixth Amendment right to counsel”8 even though deportation is nominally a civil sanction. This was a very significant move with virtues of both logic and justice. It will likely prevent many avoidable and wrongful depor- tations in the future. It may also help some deportees who have been wrongly or unjustly removed in the past. Indeed, given the large number of people who likely have been deported in part because of similarly bad legal counsel in criminal courts, the Supreme Court’s recognition of the issue was long overdue.9 However, the apparent exactness of the case, as a Sixth Amendment decision, leaves important questions unanswered about the increasingly harsh state of deportation law. 4. Haynes v. Washington, 373 U.S. 503, 515 (1963). 5. Truax v. Corrigan, 257 U.S. 312, 342 (1921) (Holmes, J., dissenting); see also Louisville & Nashville R.R. Co. v. Barber Asphalt Paving Co., 197 U.S. 430, 434 (1905) (“[I]t is important for this court to avoid extracting from the very general language of the Fourteenth Amendment a system of delusive exactness in order to destroy methods of taxation which were well known when that Amendment was adopted and which it is safe to say that no one then supposed would be disturbed.”). 6. 466 U.S. 668 (1984). 7. See, e.g., Santos-Sanchez v. United States, 548 F.3d 327 (5th Cir. 2008); Broomes v. Ashcroft, 358 F.3d 1251 (10th Cir. 2004); United States v. Gonzalez, 202 F.3d 20 (1st Cir. 2000); United States v. Del Rosario, 902 F.2d 55 (D.C. Cir. 1990); United States v. Yearwood, 863 F.2d 6 (4th Cir. 1988); United States v. Campbell, 778 F.2d 764 (11th Cir. 1985); Oyekoya v. State, 558 So. 2d 990 (Ala. Crim. App. 1989); State v. Rosas, 904 P.2d 1245 (Ariz. Ct. App. 1995); State v. Montalban, 810 So. 2d 1106 (La. 2002); Commonwealth v. Frometa, 555 A.2d 92 (Pa. 1989); see also Gabriel J. Chin & Richard W. Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 CORNELL L. REV. 697, 699 (2002) (noting that “eleven federal circuits, more than thirty states, and the District of Columbia” held that defense counsel need not discuss with their clients the collateral consequences of a conviction, including deportation). 8. Padilla, 130 S. Ct. at 1482. 9. See generally Symposium, Overcoming Barriers to Immigrant Representation: Exploring Solutions, 78 FORDHAM L. REV. 453 (2009) (discussing the significant need for adequate representation
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