By Sam Singer
For most of us, the Sixth Amendment represents the familiar proposition that we have a right to a competent criminal defense. In its plainest form, we picture a lawyer who will fight vigorously to keep us out of prison, and if he can’t, then at least to make our stay as short and comfortable as possible. We don’t ask more of the Constitution because we don’t need more; generally, the legal consequences of criminal prosecution end with an orange jumpsuit.
Not so for Jose Padilla. When he pleaded guilty to a drug charge, his prison sentence was a secondary concern. More important for Padilla, a Vietnam veteran and lawful U.S. resident of forty years, was his lawyer’s assurance that pleading guilty would not subject him to deportation. When it turned out his lawyer was wrong, Padilla sought relief in the Kentucky courts, arguing that he was deprived of his Sixth Amendment right to counsel. In denying his claim, the Kentucky Supreme Court held that the Sixth Amendment does not contemplate the “collateral consequences” of a conviction. Having examined the direct consequences of his guilty plea, the court explained, Padilla’s lawyer had no obligation to warn him that pleading guilty would automatically trigger his removal.
On Tuesday, Padilla asked the Supreme Court to reject Kentucky’s narrow interpretation of the Sixth Amendment’s right to counsel. He contends that the right is not fixed in scope, but that it expands and contracts with the objectives of the client. As a non-citizen, Padilla wanted reliable advice about the immigration consequences of conviction before entering a guilty plea. Had he received it, he would have bargained for a conviction that would not trigger deportation. Failing that, he would have gone to trial, where the government had the burden of proof and he had a fighting chance.
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Posted on October 16, 2009
