Court to decide constitutionality of bad advice

WASHINGTON — Supreme Court justices on Tuesday questioned whether defendants should expect their lawyers to correctly advise them on all the possible consequences of a guilty plea, including on important issues like deportation.

Jose Padilla, who was born in Honduras, wants the high court to throw out his 2001 guilty plea to drug charges in Kentucky.

Padilla, who has lived in the United States for more than 40 years as a legal permanent resident, said he asked his lawyer at the time whether a guilty plea would affect his immigration status and was told it wouldn’t. Padilla’s trial lawyer was wrong, and he now faces deportation.

His lawyer for the appeal told the Supreme Court that the incorrect information that was given to Padilla was a violation of the Sixth Amendment right to “effective assistance of counsel.”

Attorney Stephen Kinnaird said it is the constitutional duty of the lawyer to explain not only the direct consequences of a guilty plea but any collateral consequences as well. “His duty is to inform the client of the legal risk,” he said.

Congress tightened the rules in the mid-1990s to make deportation automatic for many crimes. Immigrants often don’t know the deportation consequences of the guilty plea, Kinnaird said, and have a right to that information in criminal cases before making a decision.

But Kentucky Assistant Attorney General WM Robert Long Jr. said criminal attorneys’ only constitutional duty is to advise defendants on guilt, innocence and sentencing when it comes to pleas, not what may happen in the future because of the plea.

The purpose of a criminal defense attorney “is not to advise” on immigration matters, Long said.

A binding requirement to advise clients correctly on areas outside their expertise would encourage lawyers “to be silent” when some defendants might not be able to afford a second immigration lawyer, Long said.

If Padilla wins, Justice Antonin Scalia questioned whether the courts would also have to make exceptions for other consequences of guilty pleas, like loss of child custody, loss of property through seizure, loss of voting rights or loss of the right to own a weapon.

“We have to decide whether we’re opening Pandora’s box here,” Scalia said.

Justice Anthony Kennedy suggested telling judges, when they ask defendants whether they are voluntarily pleading guilty, to include a disclaimer telling defendants they would have to accept any collateral consequences of their decision.