Padilla: A New Tool In Sex Offense Litigation?

It was reassuring to see the United States Supreme Court chip away at the collateral consequences doctrine in Padilla v. Kentucky. By ruling that criminal defense counsel have an affirmative obligation to advise their clients about the immigration consequences of a plea, the Court moved one step closer to reality. Let’s hope it is not the last step.

Padilla entered a guilty plea in a Kentucy court. His lawyer told him not to worry about the immigration consequences of the plea. Padilla had, after all, been in the United States for 40 years. So Padilla pleaded guilty. And deportation proceedings promptly began. He was on a one way ticket out of the land of the free.

When Padilla claimed that his lawyer was ineffective within the meaning of the Sixth Amendment, the Kentucky courts turned a deaf ear. Counsel had properly advised the client about the criminal consequences of his plea; immigration was merely collateral to the criminal plea. The Supreme Court said otherwise.

Our courts sidestep justice all the time by regarding the foreseeable consequences of a criminal conviction as merely incidental. Thus, in the case of a sex offender, courts permit convictions to stand when lawyers fail to make adequate warnings about all sorts of things, including the demeaning and often standardless manner in which so-called sex offender treatment is administered.

Does Padilla offer hope that the Courts will take a broader view of the punishing collateral consequences of a guilty plea to a sex offense?

It seems suddenly as if sex is the new crack. Hardly a day goes by in my office in which a young man does not call accused of either fondling a child, looking at child pornography, playing Romeo to some willing Juliet, or otherwise engaging in some other act of sexual misconduct. A decade ago, the phone rang almost as often with folks accused of participating in the sale of crack cocaine.

Are we enduring a new moral panic?

I’m not sure just why the American public always seems to need some unifying demon to hate. At various points, we turned our rage on alcohol, people of color, Communists, and, now sex. Somehow a stark contrast between good and evil seems to satisfy in a way that beholding shades of gray does not. Are good Americans required to be Manicheans?

Anyone accused of a sex offense really faces four harms. In my view, good lawyering requires advising a client about them all, and then doing what can be done to minimize the harm to the client arising from each of these harms.

The first two harms are obvious: the disabling effect of a felony conviction and imprisonment. These are the classic consequences of a conviction that all lawyers know and understand, although, I suspect, there may be some confusion regarding mandatory minimum sentences as these sentences change with legislative tastes.

The requirement to register on a sex offender registry and the need to participate in sex offender treatment as a condition of any probation are a direct and proximate consequence of a plea in most states. In other words, utter the word "guilty" and these consequences flow as irrevocably as, well, immigration problems.

If there is now a Sixth Amendment requirement to advise defendants of the immigration consequences of a plea, it follows that rights to due process and equal protection, and against cruel and unusual punishment, ought to be enforced in some meaningful way as to the consequences of a plea. It simply isn’t good enough to permit Courts to pass off miscarriages of justice arising from sex offender pleas as merely incidental consequences of a guilty plea.

Padilla v. Kentucky is important not just for the protection it offers to immigrants accused of crimes. It is important also as a new tool that just might help to mitigate the gratuitous harm done to those convicted of sex offenses. In the current climate of moral panic, we are failing to distinguish minor offenders from serial rapists. The result is a criminal justice system dealing out draconian consequences without meaningful review. Padilla offers the hope of change.

Reprinted courtest of the Connecticut Law Tribune.

Comments: (6)

  • Padilla
    Just for the record...what could one do if a criminal immigrant defendant pleaded guilty to a deportable offence, and the defendant was promised by the State prosecutor in a plea bargain agreement, and a supported record the Defendant would not be deported in return for his guilty plea.Would this be a padilla plus scenario?
    Posted on January 7, 2011 at 8:32 am by MGH
  • Too bad the court didn't promptly set about deport...
    Too bad the court didn't promptly set about deporting my husband. We would gladly live someplace other than the place we were born.
    Posted on June 28, 2010 at 10:00 am by Anonymous
    Last night I wa...
    Last night I watched the very popular new TV series 'GLEE'... It was a tribute to Madonna (the singer - not the Blessed Virgin). A strong theme of this episode was losing one's virginity. The actors involved two 'teenage' couples and one 'adult/teacher/guidance counselor' couple. I'm left with uncomfortable observations...
    By viewing this episode, am I 'engaged' in watching 'kiddie porn'...? While no one was 'nude' the message was clear. The only thing missing was the 'cigarette' after the act -either because smoking is no longer 'socially' acceptable OR because you can't sell cigarettes to MINORS.
    If someone sentenced to 'life' on a THE sex offender registry admitted to watching this program, would they be vilolating any 'recommendations' of their rehabilitation?
    The segment of the program where the High School Cheerleading Coach performs 'Vogue' involves many 'presumed' High School students (minors)in a 'bare chested' sexually charged performance. [Artistically, well choreographed!]. This same Cheerleading Coach encourages/intimidates two of her cheerleaders into 'engaging' one of the 'underaged' male students in promised sexual adventures to undermine his competitive edge (Raging Bull anyone?).
    While I enjoyed the TV show, I couldn't help but ask - as I'm sure many do today - where are we going as a 'species' when Legislators are asking for removing statutes of limitations on sexual assault 'claims' that will enable any of us to 'sue' someone's estate in the event that the alledged offender may have died 40-50-60 years ago......
    We are constantly 'fed' media that, as we all know, contains 'sex sells' marketing. But...what determines an offense? How many 'models' are under 18 and pose in magazines, newspapers and on billboards to advertise '2-inch' squares of garment called underwear - Remember when nothing came between Brooke and her Calvin K Jeans? How old was she????
    THESE COMMENTS ARE IN NO WAY MEANT TO CONDONE THE ABUSE OF CHILDREN - or, anyone else for that matter. This is simply a 'questioning' of the hypocrisy prevalent is our culture.
    Thank you.
    Posted on April 21, 2010 at 1:01 pm by WeDeClare
  • When we bought our townhouse in the outskirts of B...
    When we bought our townhouse in the outskirts of Baltimore a friend said "do you know you have a registered sex offender living in your neighborhood." Maybe it's because I've represented people at sex offender registry hearings, but it didn't mean too much to me, especially when I found out what his conviction was for.
    Posted on April 16, 2010 at 3:03 am by Mirriam Seddiq
  • I sure wish you were my son's attorney when he for...
    I sure wish you were my son's attorney when he forced into taking a plea rather than 10 years in prison (the threat) - and all for teenage consensual sex (he was 19, she was 16). I really dont understand why our judges, law enforcement and lawmakers dont get it. The sex offender registries are FULL of non-violent offenders, people who have never molested a child or raped anyone (the original intent of the registry).
    Posted on April 15, 2010 at 4:13 pm by toniat
  • I think all so-called 'collateral' consequences ar...
    I think all so-called 'collateral' consequences are at risk. I am waiting to see how it all plays out.
    Posted on April 15, 2010 at 3:24 pm by Mirriam Seddiq

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