Crimmigration' and the Right to Counsel at the Border Between Civil and Criminal Proceedings

“Crimmigration” and the Right to Counsel at the Border Between Civil and Criminal Proceedings Christopher N. Lasch  INTRODUCTION .................................................................................... 2132 I. G IDEON ’S OPERATIVE PROPOSITION AND THE COURT’S DECISION RULES IMPLEMENTING IT ..................................................................... 2136 A. T HE O PERATIVE P ROPOSITION : D OES THE R IGHT TO C OUNSEL P ROTECT M ORE THAN THE F AIRNESS OF A C RIMINAL T RIAL ? ........... 2136 B. D ECISION R ULES I MPLEMENTING THE R IGHT TO C OUNSEL IN C RIMINAL C ASES ............................................................................ 2140 1. Gideon v. Wainwright (1963) .................................................. 2140 2. Strickland v. Washington (1984) ............................................. 2140 3. Martinez v. Ryan (2012) ......................................................... 2142 C. T HE G AP B ETWEEN O PERATIVE P ROPOSITION AND D ECISION R ULES : GIDEON ’ S U NFULFILLED P ROMISE .................................................. 2144 II. P ADILLA ’S OPERATIVE PROPOSITION AND THE COURT’S DECISION RULE IMPLEMENTING IT ....................................................................... 2147 A. T HE O PERATIVE P ROPOSITION —P ROTECTING A GAINST U NWITTING D EPORTATIONS .............................................................................. 2147 B. D ECISION R ULES : W ILL PADILLA ’ S P ROMISE B E F ULFILLED ? ............ 2152 III. A PROPOSED DECISION RULE TO IMPLEMENT P ADILLA ’S OPERATIVE PROPOSITION ....................................................................................... 2156 CONCLUSION ....................................................................................... 2159  Assistant Professor, University of Denver Sturm College of Law; J.D., Yale Law School; B.A., Columbia College. As always, I owe a debt to others, though any errors or missteps remaining in these pages are my own. My thanks go first and foremost to Professor James Tomkovicz and the members of the Iowa Law Review for inviting me to participate in this Symposium. Members of the Rocky Mountain Collective on Race, Place, and Law, and in particular Robin Walker Sterling, provided essential support for this piece and contributed greatly to the development of my ideas. Michael Wishnie offered inspiring suggestions, as is his way. Many of them appear here, with little alteration; I regret my inability to incorporate all of his valuable insights. Alison Blackwell provided essential and timely research assistance. 2132 IOWA LAW REVIEW [Vol. 99:2131 INTRODUCTION The Supreme Court recently discovered, 1 in its 2010 decision in Padilla v. Kentucky , 2 what I have termed the “right to effective ‘crimmigration’ counsel” 3 —the right to effective advice concerning the potential immigration consequences of a criminal conviction. The decision was grounded in the Court’s recognition of a central reality of modern immigration law, the intertwining of the criminal and immigration law systems that scholars have labeled “crimmigration.” 4 The Padilla Court noted the explosion, particularly since 1996, in the use of criminal convictions as a ground for deportation, 5 and a narrowing of the grounds for discretionary relief from deportation over the same recent span of history. 6 The rise of 1. The Supreme Court claims not to “invent” new constitutional rules. Instead, the Court “discovers,” one decision at a time, what the Constitution has always required. See Danforth v. Minnesota, 552 U.S. 264, 269–71 (2008) (describing new constitutional rules as prescribed by the Constitution and not “of [the Court’s] own devising”). Indeed, at least two state courts “discovered” the constitutional right I discuss here before the Supreme Court did. People v. Pozo, 746 P.2d 523, 527–29 (Colo. 1987); State v. Paredez, 101 P.3d 799, 805 (N.M 2004). 2. Padilla v. Kentucky, 559 U.S. 356 (2010). I discuss the facts of Padilla in greater detail in a separate publication. Christopher N. Lasch, Redress in State Postconviction Proceedings for Ineffective Crimmigration Counsel , 63 DEPAUL L. REV. (forthcoming 2014). The case centered on Jose Padilla’s claim that his criminal lawyer misadvised him concerning the immigration consequences of a guilty plea. Padilla, a lawful permanent resident, was arrested when a search of the eighteen-wheeler he was driving revealed over a thousand pounds of marijuana. Joint App., Padilla , 559 U.S. 356 (No. 08-651), 2009 WL 1499270, at *47–48 (indictment). Although Padilla was initially released on bond, he was later held without bail on the belief he was “an illegal alien and is awaiting deportation by the Federal authorities.” Id. at *43 (order); see also Brief of Petitioner at 8–9, Padilla , 559 U.S. 356 (No. 08-651), 2009 WL 1497552, at *8–9. After a year in jail, Padilla pled guilty to the felony charge of trafficking in marijuana and misdemeanor charges of possession of marijuana and possession of drug paraphernalia. See Padilla v. Commonwealth, 381 S.W.3d 322, 327 (Ky. Ct. App. 2012); Joint App., supra , at *57–60 (order); Brief of Petitioner, supra , at 9. He did so on the advice of his counsel, who told Padilla that he “did not have to worry about immigration status since he had been in the country so long.” Joint App., supra , at *72 (RCr. 11.42 motion). This was wrong—Padilla’s plea rendered him deportable. Id. (citing 8 U.S.C. § 1227(a)(2)(B)(i) and its predecessor statute). 3. Lasch, supra note 2. The term “crimmigration” was coined by Juliet Stumpf in 2006, and crimmigration scholarship represents an important body of work addressing the intersection of criminal and immigration law. Id. (citing, inter alia , Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power , 56 AM. U. L. REV. 367 (2006)). 4. See supra note 3. 5. I use the term “deportation” rather than the sanitizing term “removal,” introduced with the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546, because “deport” takes a human object, while “remove” usually takes an inanimate object and obscures the human reality of deportation. Cf. Rachel Weiner, AP Drops “Illegal Immigrant” from Stylebook , WASH. POST (April 2, 2013, 4:07 PM), www.washingtonpost.com/ blogs/post-politics/wp/2013/04/02/ap-drops-illegal-immigrant-from-stylebook/ (explaining the abandonment of the term “illegal immigrant” on the grounds that “ human beings are not themselves illegal, their actions are”). 6. Padilla , 559 U.S. at 360–64. For more exhaustive treatments of Padilla , see César Cuauhtémoc García Hernández, Strickland- Lite: Padilla ’s Two-Tiered Duty for Noncitizens , 72 MD. L. REV. 844 (2013); Daniel Kanstroom, The Right to Deportation Counsel in Padilla v. Kentucky: 2014] “CRIMMIGRATION” AND THE RIGHT TO COUNSEL 2133 crimmigration convinced the Court that “deportation is an integral part— indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” 7 Because of deportation’s “close connection to the criminal process,” the Court held it would be wrong to categorize deportation as a “collateral consequence” of a criminal conviction. 8 With this holding, the Court rejected the reasoning of those lower courts (including the Kentucky Supreme Court in Mr. Padilla’s case) that had deemed deportation a “collateral consequence” and from there concluded that crimmigration counsel was outside the reach of the Sixth Amendment guarantee of criminal counsel. 9 Padilla stands somewhat uneasily at the border between civil and criminal proceedings. It is a criminal decision about the scope of the Sixth Amendment right to counsel. But Padilla is clearly more than a criminal decision, as it is rooted in the criminal justice system’s connection to the immigration justice system, which the Supreme Court has insisted (even in Padilla ) is a civil regime. 10 In these pages, I attempt to map the future of this unusual decision. To do so, I attempt to discern the values it stands for, and from there ascertain the rights it implies. This framework is borrowed from Mitchell Berman’s 2004 Virginia Law Review article describing “a conceptual distinction between constitutional operative propositions (essentially, judge-interpreted constitutional meaning) and constitutional decision rules (rules that direct courts how to decide whether a given operative proposition has been, or will be, complied with).” 11 This framework is particularly helpful in determining whether the Court’s rules are serving their intended purposes. 12 The question of the fit between an operative proposition and the The Challenging Construction of the Fifth-and-a-Half Amendment , 58 UCLA L. REV. 1461, 1480–94 (2011); and Lasch, supra note 2. The expansion of immigration consequences of convictions and the contraction of relief are, of course, not the only manifestations of “crimmigration.” See Jennifer M. Chacón, Managing Migration Through Crime , 109 COLUM. L. REV. SIDEBAR 135, 135–36 & nn.2–4 (2009) (identifying “the increasingly harsh criminal consequences attached to violations of laws regulating migration” and a “rising reliance on criminal law enforcement actors and mechanisms in civil immigration proceedings” in addition to the increased use of deportation “as an adjunct to criminal punishment in cases involving non-citizens”). 7. Padilla , 559 U.S. at 364 (footnote omitted). 8. Id. at 366. 9. Id. 10. Id. at 365 (citing I.N.S. v. Lopez–Mendoza, 468 U.S. 1032, 1038 (1984)). 11. Mitchell N. Berman, Constitutional Decision Rules , 90 VA. L. REV. 1, 51 (2004) (distinguishing “constitutional decision rules” from “constitutional operative propositions”). 12. Berman described his “functional taxonomy” as a “tool” for effectuating the growing appreciation of scholars and courts “that judge-created constitutional...