Supreme Court Says Lawyers Must Warn Noncitizen Clients About Deportation Risks

In a 7–2 ruling, the Supreme Court Wednesday said that lawyers have a constitutional duty to warn noncitizen clients that pleading guilty may result in deportation. The ruling came in the case of Jose Padilla, who was arrested in 2001 and charged with drug trafficking. His lawyer advised Padilla to plead guilty in exchange for a shorter sentence. Padilla immigrated from Honduras 40 years ago and held a green card, and his lawyer told him that a conviction would not affect his immigration status.

The lawyer’s advice was wrong. Drug trafficking is an “aggravated felony,” meaning Padilla lost any benefit of his immigration status and would have no defense should the government choose to deport him. In 2004, Padilla filed a motion in court in Kentucky asking to withdraw his guilty plea, arguing that he would not have plead guilty if he had known about the immigration consequences.

In the Court's ruling today, Justice John Paul Stevens wrote that a "constitutionally competent counsel would have advised [Padilla] that his conviction … made him subject to automatic deportation." Stevens noted that deportation law is complex and has changed dramatically in recent years, pointing out that in 1996 Congress eliminated the Attorney General's discretion to stop deportation proceedings, making deportation "practically inevitable" for some offenses. Therefore, even though deportation is not a direct consequence of a conviction, "deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes."

Justice Samuel Alito, writing separately for himself and Chief Justice John Roberts, also focused on the complexity of deportation law but came to a somewhat different conclusion. Alito agreed that the lawyer's bad advice about Padilla's deportation caused constitutional problems, but he said that lawyers should not be required to explain deportation consequences to their clients in all cases. When a lawyer gives bad advice, Alito wrote, that may be grounds for reversing a conviction, but lawyers should not be required to explain all possible consequences of a plea.

Justices Antonin Scalia and Clarence Thomas dissented. Scalia argued that the Constitution mandated that criminal defendants be given a lawyer "for his defense," but the Constitution does not require that the lawyer handle any consequences beyond defending against the criminal charges. Scalia cited Justice Alito's opinion, which listed many of the consequences a criminal may face, including jail time, loss of right to vote, loss of business licenses, and ineligibility to own firearms. Scalia said that a lawyer should not be constitutionally required to advise his client about all effects of a conviction.

Padilla's case will now return to the lower courts, where a judge will have to determine whether Padilla would have been convicted even without his guilty plea.

Privileges and vendettas in the courtroom

"The gavel allows you to push issues" according to Senate Judiciary Committee Ranking Member Senator Arlen Specter (R-Penn.) and he added that he missed being the one holding the gavel.

At The Heritage Foundation discussion on "Attorney-Client Privilege: Repairing the Damage," Senate Judiciary Committee Ranking Member Senator Arlen Specter (R-Penn.) focused on the Department of Justice's policies regarding the right to counsel and the Sixth Amendment of the United States Constitution. The Sixth Amendment sets forth rights related to criminal prosecutions in federal courts.


When asked if courts would ever allow cameras into the courtrooms, Specter said that courts today decide all "cutting edge authority." Specter noted that the print media has accessibility and a shift to electronic media was inevitable. Specter said that, as always, there was the question of security, but it was something that simply needed to be dealt with. Specter said he understood the public's desire for transparency and accessibility in institutions such as the Supreme Court.

Specter also discussed the case of Kent Wakefield from Virginia. According to Specter, Wakefield had written him a letter detailing his six year ordeal with the courts. Quoting Wakefield, Specter said that his employer at America Online (AOL) demanded to waive his attorney-client privilege. In addition, Specter said that Wakefield's assets were frozen. Specter said this was an example of a "vendetta being carried out."


Specter explained the importance of full disclosure between attorneys and their clients. Specter said that if the client did not feel comfortable telling his attorney everything, the attorney would not be able to sufficiently represent his client and the client would not get the full value of his attorney. Specter also emphasized that attorney-client privileges ensure fair trials and the government wins when justice is done.