Criminal Law

Padilla v. Kentucky, Changing how the Strickland Test is Applied to Modern Day Ineffective Assistance of Counsel Claims


After the United States Supreme Court’s March 31, 2010 decision in Padilla v. Kentucky, ineffective assistance of counsel standards have changed when dealing with the distinction of direct and collateral consequences.[1] The Court held that defense counsel was ineffective in failing to advise his client that he would be subject to automatic deportation by accepting a plea bargain to drug distribution.[2]

The Padilla Court set two different standards for ineffective assistance of counsel.[3] Where the law is “not succinct and straightforward,”[4] an attorney merely has to “advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.”[5] Whereas, when the consequences are certain, counsel’s erroneous advice “fell below an objective standard of reasonableness,”[6] thereby meeting the first prong of the two ineffective assistance of counsel prongs.[7]

Padilla concluded reversed courts holding that defense attorneys do not have to advise clients about collateral consequences.[8] The court acknowledged that it “never applied a distinction between direct and collateral consequences to define the scope of constitutionally reasonable professional assistance,”[9] as required in establishing ineffective assistance of counsel. Given “the unique nature of deportation,” the fact that it “is intimately related to the criminal process,”[10] and the recent changes to immigration law, the direct-collateral distinction is thus “ill-suited.”[11] Specifically, this approach “arguably creates a new standard of care for defense attorneys to be aware of collateral consequences and to properly advise their clients about them.”[12]

[1] Padilla, 130 S. Ct. 1473 (2010).

[2] Id.

[3] Id.

[4] Id. at 1483.

[5] Id.

[6] Id.

[7] Id.

[8] 5 Wayne R. LaFave, Jerold H. Israeal, Nancy J. King & Orin S. Kerr, Criminal Procedure§ 21.3(d) n.63.5 (3rd ed. 2007) (citing Santos v. Kolb, 880 F.2d 941 (7th Cir, 1989)); People v. Davidovich, 463 Mich. 446; Alanis v. State, 583 N.W.2d 573 (Minn. 1998)).

[9] Padilla, 130 S. Ct. at 1481.

[10] Id.

[11] Id. at 1475, 1483.

[12] See 5 Wayne R. LaFave, Jerold H. Israeal, Nancy J. King & Orin S. Kerr, Criminal Procedure§ 21.3(b)  n.63.8 (3rd ed. 2007 & Supp. 2010-11) (quoting Chris Gowen, After Padilla, How Your Involvement Can Help, ABA Criminal Justice Section Newsletter 2 (Spring 2010)).

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