Swinging a Sledge: The Right to Effective Assistance of Counsel, the Law of Deportations, and Padilla v. Kentucky

Engage, Volume 11, Issue 2

August 31, 2010

Joseph Ditkoff

In Padilla v. Kentucky, the Supreme Court decided that the Sixth Amendment’s guarantee of the effective assistance of legal counsel requires that counsel inform his client whether his guilty plea in a criminal case carries a risk of deportation. The Court’s decision significantly expands the reach of the traditional Sixth Amendment constitutional protection afforded criminal defendants via the long-established rule of Strickland v. Washington, and, concomitantly, significantly alters the landscape of what courts will consider to be adequate representation in criminal proceedings. The precise contours of the right, thus expanded, will be left to the vagaries of the common law in both state and federal court to map out. This short article will discuss Padilla and some of its forebears and foreshadowings. As will be seen, the Supreme Court has again left prosecutors, defense counsel, and judges with a somewhat muddy decision that leaves the hard work for later, and for others...

Swinging a Sledge: The Right to Effective Assistance of Counsel, the Law of Deportations, and Padilla v. Kentucky