Can Padilla Be Used In Sex Offense Cases?

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.