The SCOTUS decided Padilla v. Kentucky today, and held that a defense lawyer has a duty to advise a client that they will be deported if they plead guilty, where the deportation consequences are clear. South Carolina draws a distinction between collateral and non-collateral consequences when analyzing a claim of ineffective assistance (in the context of a petition for PCR/ post conviction relief). Under S.C. law, a failure to advise of collateral consequences was not ineffective assistance,although bad advice would be ineffective assistance. Today’s decision makes clear that immigration consequences are not collateral.
Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strickland applies to Padilla’s claim.
The Court declines to decide whether there is such a thing as “collateral consequences” at all:
We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance” required under Strickland, 466 U. S., at 689. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation.
Does this leave a door open for other issues that counsel currently has no duty to advise of under South Carolina law? Parole eligibility comes to mind – certain offenses are not parole eligible and a defendant must serve 85% of their sentence and two years of community supervision upon release; under current law there is no duty to advise of this and it is considered ineffective assistance only if bad advice is given.
More at Defending People.