A Game Changer? The Impact of Padilla v. Kentucky on the Collateral Consequences Rule and Ineffective Assistance of Counsel Claims

November 30, 2013

The Sixth Amendment entitles a criminal defendant to effective assistance of counsel when deciding whether to plead guilty. Defense counsel, therefore, must ensure that his client understands the direct consequences of the plea: the nature of the criminal charge and the sentence. However, pursuant to the traditional collateral consequences rule employed by most courts, counsel has no Sixth Amendment obligation to warn that criminal defendant of so–called collateral consequences, such as mandatory sex offender registration, civil commitment, or ineligibility for parole. Prior to 2010, deportation was also considered a collateral consequence of a guilty plea in most jurisdictions.

In Padilla v. Kentucky, the U.S. Supreme Court made deportation an exception to the collateral consequences rule, and held for the first time that counsel’s failure to advise a criminal defendant of the deportation consequences of a guilty plea constitutes ineffective assistance of counsel. Lower courts have differed on whether to interpret Padilla as effecting a change to the collateral consequences rule, and more specifically, how to define direct consequences, in the context of an ineffective assistance of counsel claim. This Note examines the conflict, and concludes that courts should redefine the scope of direct consequences in light of the factors considered by the Court in Padilla.

December 2013

No. 3