Chicago Criminal lawyer says clients should know about collateral consequences of a guilty plea

This Chicago Criminal lawyer is pleased with the Supreme Court’s Ruling in Padilia v. Kentucky. Unfortunately, some colleagues aren’t interested in attempting to cover the collateral consequences of a guilty plea. I’ve posted here and here about collateral consequences of crimes.

In Illinois, all pleas of guilty require an advisement from the judge as to the possible consequences of deportation or denial of citizenship. This advisement is codified at 725 ILCS 5/113-8.

(725 ILCS 5/113‑8)

Sec. 113‑8. Advisement concerning status as an alien. Before the acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere to a misdemeanor or felony offense, the court shall give the following advisement to the defendant in open court:
"If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States.".
(Source: P.A. 93‑373, eff. 1‑1‑04.)

In Padilia v. Kentucky, the U.S. Supreme Court has reached a similar position, but the burden is placed on the defendant's counsel. The dissent seems to believe it should be left up to the legislature, like the approach followed in Illinois.

Padilia v. Kentucky, No. 08-651

Petitioner Padilla, a lawful permanent resident of the United States for over 40 years, faces deportation after pleading guilty to drug distribution charges in Kentucky. In postconviction proceedings, he claims that his counsel not only failed to advise him of this consequence before he entered the plea, but also told him not to worry about deportation since he had lived in this country so long. He alleges that he would have gone to trial had he not received this incorrect advice. The Kentucky Supreme Court denied Padilla postconviction relief on the ground that the Sixth Amendment’s effective assistance-of-counsel guarantee does not protect defendants from erroneous deportation advice because deportation is merely a “collateral” consequence of a conviction.

Held: Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced, a matter not addressed here. Pp. 2–18.

(a) Changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. While once there was only a narrow class of deportable offenses and judges wielded broaddiscretionary authority to prevent deportation, immigration reforms have expanded the class of deportable offenses and limited judges’authority to alleviate deportation’s harsh consequences. Because the drastic measure of deportation or removal is now virtually inevitablefor a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation isan integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. Pp. 2–6.

I know it seems like informing clients of the possible consequences of a plea would be a basic level of competence but,the dissent didn’t see it that way:

JUSTICE SCALIA, with whom JUSTICE THOMAS joins,dissenting.
In the best of all possible worlds, criminal defendant scontemplating a guilty plea ought to be advised of all serious collateral consequences of conviction, and surely ought not to be misadvised. The Constitution, however, is not an all-purpose tool for judicial construction of a perfect world; and when we ignore its text in order to make it that, we often find ourselves swinging a sledge where a tack hammer is needed.

The Sixth Amendment guarantees the accused a lawyer“for his defense” against a “criminal prosecutio[n]”—not for sound advice about the collateral consequences of conviction. For that reason, and for the practical reasons set forth in Part I of JUSTICE ALITO’s concurrence, I dissent from the Court’s conclusion that the Sixth Amendment requires counsel to provide accurate advice concerning the potential removal consequences of a guilty plea.For the same reasons, but unlike the concurrence, I do not believe that affirmative misadvice about those consequences renders an attorney’s assistance in defending against the prosecution constitutionally inadequate; or that the Sixth Amendment requires counsel to warn immigrant defendants that a conviction may render them removable.

I do sense that the dissent is clearly wishing to protect criminal defense lawyers from having to work outside of their expertise in criminal matters.