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199 3. Sixth Amendment — Effective Assistance of Counsel 2010] THE SUPREME COURT — LEADING CASES 199 3. Sixth Amendment — Effective Assistance of Counsel. — The Sixth Amendment right to counsel has long been recognized as the right to be represented by “effective” counsel.1 In Strickland v. Wash- ington,2 the Supreme Court clarified that counsel is ineffective if two requirements — constitutional deficiency and prejudice — are met.3 Federal and state courts have held, in near unanimity, that the right to effective assistance of counsel extends only to direct consequences of a conviction, not to so-called collateral consequences,4 even though “the imposition of collateral consequences has become an increasingly cen- tral purpose of the modern criminal process.”5 Last Term, in Padilla v. Kentucky,6 the Supreme Court held that criminal defense counsel have an affirmative duty to provide accurate information regarding the de- portation consequences of a guilty plea when those consequences are “clear.”7 In extending Strickland to ineffective assistance claims re- garding deportation, the Court stated that deportation is unique and difficult to classify as either a direct or a collateral consequence of conviction.8 The Court implicitly rejected the current approaches to determining Strickland’s reach and created a new category of covered topics that cannot reasonably be restricted to the deportation conse- quence alone. Lower courts will likely struggle over which other con- sequences — previously excluded from Strickland’s coverage — are similarly “unique.” Jose Padilla has resided in the United States as a lawful permanent resident for over forty years.9 Padilla pleaded guilty to three drug- related charges after he was indicted in Hardin County, Kentucky.10 Padilla claimed that he entered his guilty plea in reliance upon his at- torney’s advice that he “did not have to worry about immigration sta- tus since he had been in the country so long.”11 In fact, however, his conviction resulted in nearly automatic deportation.12 Padilla filed for ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 See McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970) (“[T]he right to counsel is the right to the effective assistance of counsel.”). 2 466 U.S. 668 (1984). 3 Id. at 687. 4 See, e.g., United States v. Gonzalez, 202 F. 3d 20, 25 (1st Cir. 2000); see also Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 CORNELL L. REV. 697, 706–08 (2002). 5 Chin & Holmes, supra note 4, at 699. 6 130 S. Ct. 1473 (2010). 7 Id. at 1483. When the consequences are not “clear,” counsel need only advise the defendant that his plea may carry a risk of adverse immigration consequences. Id. 8 Id. at 1481–82. 9 Id. at 1477. 10 Commonwealth v. Padilla, 253 S.W.3d 482, 483 (Ky. 2008). 11 Padilla, 130 S. Ct. at 1478 (quoting Padilla, 253 S.W.3d at 483) (internal quotation marks omitted). 12 See id. at 1480. 200 HARVARD LAW REVIEW [Vol. 124:179 post-conviction relief on the basis of ineffective assistance of counsel, claiming that he would have proceeded to trial if not for the incorrect advice of his attorney.13 The Kentucky trial court denied Padilla’s motion, reasoning that deportation was a collateral consequence of a conviction and thus beyond the scope of the right to counsel.14 The Kentucky Court of Appeals reversed, holding that while collateral consequences such as deportation are generally outside the scope of representation required by the Sixth Amendment, affirmative “‘gross misadvice’ relating to collateral matters can justify post-conviction relief.”15 The Kentucky Supreme Court reversed.16 Relying on its own deci- sion in Commonwealth v. Fuartado,17 the court held that an attorney has no duty to advise his client about the immigration consequences of a guilty plea.18 The court acknowledged that many courts have distin- guished between a failure to advise and affirmative misadvice, but concluded that the distinction is immaterial since collateral conse- quences are wholly outside the scope of the right to counsel.19 Two justices dissented, arguing that misadvice regarding deportation vi- olates the Sixth Amendment right to counsel, because “[c]ounsel who gives erroneous advice . is worse than no lawyer at all.”20 The Supreme Court reversed and remanded.21 Writing for the Court, Justice Stevens22 surveyed the evolution of the deportation rem- edy: while initially only a narrow class of deportable offenses existed, with judges holding broad discretion, the class has expanded and de- portation has become virtually automatic for many noncitizens con- victed of crimes.23 Justice Stevens concluded that the changes have “dramatically raised the stakes of a noncitizen’s criminal conviction,” and that “deportation is an integral part — indeed, sometimes the most ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 13 Id. at 1478. 14 See Padilla, 253 S.W.3d at 483 (“Padilla’s counsel does not make a deportation decision and neither does this Court.” (quoting unpublished trial court opinion) (internal quotation marks omitted)). 15 Id. at 483–84 (quoting unpublished Court of Appeals opinion). 16 Id. at 485. 17 170 S.W.3d 384 (Ky. 2005). 18 Padilla, 253 S.W.3d at 485. 19 Id. at 484–85. The Kentucky Supreme Court is apparently the only court to have held that misadvice regarding deportation, as opposed to silence, cannot constitute constitutionally deficient representation. See Petition for a Writ of Certiorari at 15, Padilla, 130 S. Ct. 1473 (No. 08-651), 2008 WL 4933628, at *15. 20 Padilla, 253 S.W.3d at 485 (Cunningham, J., dissenting). 21 Padilla, 130 S. Ct. at 1487. 22 Justice Stevens was joined by Justices Kennedy, Ginsburg, Breyer, and Sotomayor. 23 Padilla, 130 S. Ct. at 1478–80. 2010] THE SUPREME COURT — LEADING CASES 201 important part — of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”24 Justice Stevens noted that while many lower courts have distin- guished between direct and collateral consequences in defining the scope of the Sixth Amendment right to counsel, the Court has never done so.25 However, because of the “unique nature of deportation,” the Court decided that it did not need to resolve the merit of the collateral versus direct distinction.26 The Court offered two reasons in support of this conclusion. First, deportation is “a particularly severe ‘penal- ty.’”27 Second, it is “intimately related to the criminal process,” making it “‘most difficult’ to divorce the penalty from the conviction in the deportation context.”28 In this respect, the Court considered it “impor- tant[]” that removal is “nearly an automatic result for a broad class of noncitizen offenders.”29 Because of this close connection between de- portation and the criminal process, the majority reasoned, the collater- al versus direct distinction is “ill-suited to evaluating” an ineffective- ness of counsel claim regarding deportation.30 Justice Stevens concluded that “advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel,” and therefore applied Strickland to Padilla’s claim.31 He then explained that under the first prong of the Strickland analysis — constitutional deficiency — the inquiry is whether the attorney’s per- formance was reasonable under prevailing norms.32 He found that “[t]he weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.”33 Justice Stevens then set out a test for determining the type of ad- vice to which a noncitizen defendant is entitled. Padilla was entitled to “correct advice” because the terms of the immigration statute gov- erning his drug charges were “succinct, clear, and explicit in defining the removal consequence for Padilla’s conviction.”34 However, Justice Stevens acknowledged that some defense attorneys are not well versed ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 24 Id. at 1480 (citation omitted). 25 Id. at 1481. 26 Id. 27 Id. (quoting Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893) (Brewer, J., dissenting)). 28 Id. (quoting United States v. Russell, 686 F.2d 35, 38 (D.C. Cir. 1982)). 29 Id. 30 Id. at 1482. 31 Id. 32 Id. (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)). 33 Id. The Court’s decision in INS v. St. Cyr, 533 U.S. 289, 322 (2001), recognizing the ex- treme importance to a defendant of the right to remain in the United States, supported this pre- vailing view. See Padilla, 130 S. Ct. at 1483. 34 Padilla, 130 S. Ct. at 1483 (“[W]hen the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.”). 202 HARVARD LAW REVIEW [Vol. 124:179 in immigration law and that the deportation consequences of a plea will often be unclear.35 Because of this complexity, when the law is “not succinct and straightforward,” counsel need “do no more than ad- vise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.”36 Justice Stevens next rejected the proposal, supported by the Solici- tor General and adopted by several lower courts,37 that Strickland should apply only insofar as Padilla alleged “affirmative misadvice.”38 Justice Stevens found that such a rule would encourage silence on mat- ters of great importance and “deny a class of clients least able to represent themselves the most rudimentary advice on deportation even when it is readily available.”39 Justice Stevens dismissed concerns that the Court’s
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