Ignorance is effectively bliss: Collateral consequences, silence, and misinformation in the guilty-plea process

Iowa Law Review

Volumn 95, Issue 1, 2009, Pages 119-194

  Roberts, Jenny ^a  

^a National Institute of Disability Rehabilitation and Research   (United States)

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EID: 76949091378     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (470)

1. United States v. Russell, 686 F.2d 35, 36-37 (D. C. Cir. 1982).
2. Id. at 36;
3. see also 8 U. S. C. § 1101 (a) (20) (2006) ("The term 'lawfully admitted for permanent residence' means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant.").
4. Russell, 686 F.2d at 37 (noting how Russell moved to withdraw his plea only four days later).
5. Id. at 41.
6. Id.
7. Id. (quoting the prosecutor as saying during guilty-plea allocution: "We haven't explored it thoroughly, but it would appear that if Mr. Russell were convicted under the felony count, marijuana again, that he might be subject to deportation, which would not be the case if he took the misdemeanor.").
8. Id. at 38 (noting how, under immigration law, "criminal conviction [s] lead[] often, and sometimes automatically, to deportation" (footnote omitted)).
9. Commonwealth v. Padilla, 253 S. W.3d 482, 483 (Ky. 2008)
10. cert. granted, 129 S. Ct. 1317 (2009).
11. Id. at 485.
12. See id. (reinstating Padilla's conviction) ;
13. * ("[B]ecause the offense was an aggravated felony, Petitioner's deportation is mandatory.") ;
14. see also 8 U. S. C. § 1101 (a) (43) (2006) (defining "illicit trafficking in a controlled substance" to be an aggravated felony) ;
15. id. § 1227 (a) (2) (B) (i) (including marijuana trafficking on list of deportable drug offenses) ;
16. id. § 1229b (a) (3) (excluding aggravated felonies from the extremely limited list of convictions that might qualify for discretionary relief from deportation from the Attorney General) ;
17. 21 U. S. C. §812 (c) (c) (10), (17) (listing marihuana and tetrahydrocannabinols as Schedule I controlled substances).
18. Padilla, 253 S. W.3d 482. Padilla was originally given a split sentence of five years prison followed by five years probation.
19. Id. at 483. He has finished serving the prison term, and his deportation has been stayed pending the Supreme Court's decision. Telephone Interview by Erin Creaghe with Richard Neal, Attorney for Jose Padilla, in Louisville, Ky. (Feb. 20, 2009). The Court heard oral arguments on October 13, 2009.
20. Adam Liptak, Justices Seem Sympathetic to Defendant Given Bad Legal Advice, N. Y. TIMES, Oct. 14, 2009, at A18, available at http://www.nytimes.com/2009/10/14/us/14scotus.html?-r=1&sq=padilla.
21. *15.
22. See infra Part III. B.4 (pointing out how professional standards have taken greater account of the growing effects of collateral consequences of criminal convictions but still fall short with respect to making the duty to inform enforceable).
23. See infra note 172 and accompanying text (discussing the role of the Sixth Amendment and the standards it imposes on attorneys).
24. Courts use several different tests for distinguishing between direct and collateral consequences. See Jenny Roberts, The Mythical Divide Between Collateral and Direct Consequences of Criminal Convictions: Involuntary Commitment of "Sexually Violent Predators", 93 MINN. L. REV. 670, 689-93 (2008) (describing and critiquing the three main tests and listing cases relying upon them). The prevailing definition of "direct consequence" comes from the Fourth Circuit.
25. See Cuthrell v. Dir., Patuxent Inst., 475 F.2d 1364, 1366 (4th Cir. 1973) ("The distinction between 'direct' and 'collateral' consequences of a plea, while sometimes shaded in the relevant decisions, turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment"). This Article, for the limited purpose of comparing silence to misadvice, does not accept but rather works within this framework. Thus, this Article's use of the convenient term "collateral consequence" simply means the consequences that most courts have categorized as collateral.
26. See, e.g., Moore v. Hinton, 513 F.2d 781, 782-83 (5th Cir. 1975) (deeming revocation of driver's license collateral) ;
27. Waddy v. Davis, 445 F.2d 1, 3 (5th Cir. 1971) ("[L]oss of franchise is a result of the conviction, not the plea.") ;
28. Doe v. Weld, 954 F. Supp. 425, 438 (D. Mass. 1996) ("[E]ntering the guilty plea without knowledge of the potential for [sex-offender] registration and community notification does not render his plea involuntary and, thus, does not violate the Constitution. ").
29. See, e.g., Steele v. Murphy, 365 F.3d 14, 17 (1st Cir. 2004) (finding that "the possibility of commitment for life as a sexually dangerous person is a collateral consequence of pleading guilty") ;
30. State v. Paredez, 101 P.3d 799, 803 (N. M. 2004) ("Each federal circuit that has directly considered the issue has held that deportation is a collateral consequence of pleading guilty so that the trial court is not required to inform the defendant of the immigration consequences of his or her plea.").
31. See, e.g., Broomes v. Ashcroft, 358 F.3d 1251, 1257 (10th Cir. 2004) ("[D]eportation remains a collateral consequence of a criminal conviction, and counsel's failure to advise a criminal defendant of its possibility does not result in a Sixth Amendment deprivation. ").
32. See, e.g., Steele, 365 F.3d at 16. Consideration of the collateral-consequences rule generally arises in the context of guilty pleas, when a defendant seeks to withdraw his guilty plea based on a lack of information about a consequence. However, the right to information also applies when a defendant rejects a plea-bargain offer or the opportunity to plead guilty to the charges against him. Here, the relevant consideration would be the defendant's right to be aware of the potential consequences he would face should he be convicted after trial.
33. See generally Boria v. Keane, 99 F.3d 492, 495 (2d Cir. 1996) (finding ineffective assistance of counsel where lawyer failed to counsel defendant "that, although he never even suggested such a thought to [his client], it was [defense counsel's] own view that his client's decision to reject the plea bargain was suicidal" (footnote omitted)).
34. See U. S. CONST. amends. V, XIV;
35. see also Brady v. United States, 397 U. S. 742, 748 (1970) (applying due-process norms to guilty pleas).
36. U. S. CONST. amend. VI;
37. see also Hill v. Lockhart, 474 U. S. 52, 58-59 (1985) (applying right-to-counsel norms to guilty pleas). While erroneous information may lead to an invalid plea under due-process principles, an ineffective-assistance claim requires that a defendant show both incompetent lawyering (the erroneous advice) and prejudice (a demonstration that, without the erroneous advice, there is a reasonable probability that the defendant would have chosen to go to trial rather than pleading guilty).
38. Id.
39. *13. The Petition further noted that between 1979 and 2008: [A]ll jurisdictions that have considered the question have also concluded that even though the subject was a "collateral" matter for which the defendant was not entitled to representation-such as deportation, parole eligibility, suspension of driving privileges, etc.-flagrant misadvice by counsel may constitute ineffective assistance which renders the plea involuntary.
40. *12 (footnote omitted).
41. See infra Part III. B (discussing these non-constitutional sources of regulation).
42. See JOAN PETERSILIA, WHEN PRISONERS COME HOME 3 (2003) ("One of the most profound challenges facing American society is the reintegration of more than 600, 000 adultsabout 1, 600 a day-who leave state and federal prisons and return home each year.") ;
43. see also Address Before a Joint Session of the Congress on the State of the Union, 1 PUB. PAPERS 81 (Jan. 20, 2004). President Bush stated: [T]onight I propose a 4-year, $300 million prisoner reentry initiative to expand job training and placement services, to provide transitional housing, and to help newly released prisoners get mentoring, including from faith-based groups. America is the land of second chance, and when the gates of the prison open, the path ahead should lead to a better life.
44. Id. at 88.
45. See, e.g., TEX. HEALTH & SAFETY CODE ANN. § 250.006 (Vernon 2007) (listing numerous criminal convictions that are a permanent or five-year bar to employment in facilities serving the elderly, disabled, or terminally ill).
46. See Devah Pager, The Mark of a Criminal Record, 108 AM. J. SOC. 937, 956 (2003) (noting how employers often use an applicant's criminal record as a screening mechanism). The use of criminal records has become such a bar to employment that some jurisdictions have adopted "ban the box" initiatives, under which applicants for government jobs no longer have to fill in a box asking if they have been convicted of a crime. Minnesota recently enacted such a statute, under which most public employers "may not inquire into or consider the criminal record or criminal history of an applicant... until the applicant has been selected for an interview." Omnibus Public Safety Policy Bill, ch. 59, art. 5, § 11, 2009 Minn. Sess. Laws Serv. 278, 297 (West) (to be codified at MINN. STAT. §364.021). However, an agency will still conduct a background check on any person offered a job and any statutory bars to employment will remain in effect.
47. Id. These initiatives recognize the discrimination that individuals with criminal records face in simply getting an initial interview.
48. See Gene C. Johnson, 'Ban The Box' Movement Gains Steam, L. A. WAVE, Aug. 15, 2006, available at http://news. newamericamedia.org/news/View-article.html?article-id= 99ce5ed2c12c489351589891334e720f (describing "ban the box" rules in Los Angeles County and in the cities of Boston, Chicago, and San Francisco).
49. For example, a plea to simple drug possession results in ineligibility for, or termination of, federal student loans
50. see 20 U. S. C. § 1091 (r) (1) (2003) (varying ineligibility periods based on number of convictions), most public housing
51. see 42 U. S. C. § 13661 (2003), and public benefits in most states
52. see 21 U. S. C. § 862a (2003).
53. See, e.g., KAN. STAT. ANN. §59-29a07 (c) (2005 & Supp. 2007) (describing how individuals subject to the "Sexually Violent Predator Act" can be confined by the Secretary of Corrections so long as they are "housed and managed separately from offenders in the custody of the secretary of corrections, and except for occasional instances of supervised incidental contact, [are] segregated from such offenders").
54. See, e.g., Tex. Dep'l of Pub. Safety, Public Sex Offender Registry, https://records. txdps.state.tx.us/DPS-WEB/SorNew/PublicSite/index. aspx (last visited Nov. 11, 2009) (listing both home and work addresses of registered sex offenders in Texas).
55. See, e.g., Sex Offenders Living Under Miami Bridge, N. Y. TIMES, Apr. 8, 2007, at A22 (describing how local laws restricting where convicted sex offenders may live forced five men to live under a bridge and how they "must stay at the bridge from 10 p. m. to 6 a.m. because a parole officer checks on them nearly every night").
56. See Boria v. Keane, 99 F. Sd 492, 496-97 (2d Cir. 1996) ;
57. Steven Zeidman, To Plead or Not to Plead: Effective Assistance and Client-Centered Counseling, 39 B. C. L. REV. 841, 847-48 (1998) (noting how Bona "held that the Constitution requires that defense counsel provide an informed opinion on whether to plead guilty or go to trial") ;
58. see also In re Resendiz, 19 P.3d 1171, 1178 (Cal. 2001). In Resendiz, the court stated: We recognize that it is the attorney, not the client, who is particularly qualified to make an informed evaluation of a proffered plea bargain. Thus,... [t]he defendant can be expected to rely on counsel's independent evaluation of the charges, applicable law, and evidence, and of the risks and probable outcome of trial.
59. Id. (quoting In re Alvernaz, 830 P.2d 747, 753 (Cal. 1992)). The trial court will also be involved, but in a much more limited role as judge of the voluntariness of any guilty plea as well as a potential conduit for information about collateral consequences, should that discussion happen in open court. The prosecutor might be involved, but only if there is discussion in open court or in the less likely event mat she offers information about collateral consequences directly to a pro se defendant during plea negotiations.
60. See Hill v. Lockhart, 474 U. S. 52, 56 (1985) ("Where... a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice 'was within the range of competence demanded of attorneys in criminal cases.'" (quoting McMann v. Richardson, 397 U. S.759, 771 (1970))).
61. See supra note 15 and accompanying text (explaining the different definitions used for distinguishing between "direct" and "collateral" consequences) ;
62. see also Brady v. United States, 397 U. S. 742, 756-57 (1970) (discussing how Brady was advised by competent counsel as to possible penalties based on existing law).
63. See Powell v. Alabama, 287 U. S. 45, 69 (1932) ("Even the intelligent and educated layman has small and sometimes no skill in the science of law.... He requires the guiding hand of counsel at every step in the proceedings against him.").
64. In 1997, Congress renamed proceedings to expel an illegal immigrant from the country, changing "deportation" to "removal" in federal immigration law. Illegal Immigration Reform and Immigration Responsibility Act of 1996 § 308, Pub. L. No. 104-208, 110 Stat. 3009. 546 (1996) (codified as amended in scattered sections of 8 U. S. C.). This Article relies on the older, more descriptive, and widely understood term.
65. See Christopher N. Lasch, Enforcing the Limits of the Executive's Authority to Issue Immigration Detainers, 35 WM. MITCHELL L. REV. 164, 166 n. 7 (2008) ("By replacing a word ('deport') that requires a human object with another ('remove') that is usually applied to an inanimate object, Congress opted for sanitizing language that embodies an attitude toward unauthorized migration fully consistent with rhetoric that describes unauthorized immigrants as 'illegal.'").
66. Roberts, supra note 15, at 674.
67. Id.
68. Id.
69. Id. at 674-75.
70. See supra note 21 and infra note 64 and accompanying text (describing the Supreme Court's two-prong ineffective-assistance-of-counsel test).
71. See supra note 21 (describing the prejudice prong of the ineffective-assistance-ofcounsel test).
72. See Roberts, supra note 15, at 684-89 (questioning the lower federal and state courts' reliance upon Brady v. United States, 397 U. S. 742 (1970), in fashioning the collateral consequences doctrine).
73. See Adam Deming, Sex Offender Civil Commitment Programs: Current Practices, Characteristics, and Resident Demographics, 36 J. PSYCHIATRY & LAW 439, 441-43 (2008).
74. See, e.g., Steele v. Murphy, 365 F.3d 14, 17-18 (1st Cir. 2004) (holding that a defendant does not need to be informed that he might be involuntarily committed for life, as a "sexually dangerous person", following release from prison).
75. State v. Paredez, 101 P.3d 799, 803 (N. M. 2004) (citation omitted) (citing cases from numerous Circuit Courts of Appeal finding deportation to be a collateral consequence). Although there are various court and ethical rules and professional standards which may require or recommend advisement about certain consequences (usually immigration), in most jurisdictions no one is constitutionally obligated to give a defendant this critical informationnot the court, prosecutor, nor even defense counsel. Consequently, there is no uniformity in the distribution of information about collateral consequences to defendants.
76. See infra Parts II. B.2-5 (discussing such rules and standards).
77. See Brief of Amici Curiae Criminal and Immigration Law Professors, Capital Area Immigrants' Rights Coalition, Washington Lawyers' Committee for Civil Rights and Urban Affairs, and Western Kentucky Refugee Mutual Assistance Society, Inc. in Support of Petitioner at 11-12, Padilla v. Kentucky, No. 08-651 (U. S. Jan. 21, 2009), 2009 WL 164242 [hereinafter Padilla Amici Cert. Petition] (noting how, under federal constitutional rulings, "[t]en federal circuits and seventeen states hold that defense lawyers are under no obligation" to warn clients about deportation prior to a guilty plea and how three state courts have come to the opposite conclusion, also applying federal constitutional norms).
78. See State v. Paredez, 101 P.3d 799, 805 (N. M. 2004) ;
79. see also People v. Pozo, 746 P.2d 523, 529 (Colo. 1987) ("When defense counsel in a criminal case is aware that his client is an alien, he may reasonably be required to investigate relevant immigration law." (citing People v. Soriano, 194 Cal. App. 3d 1470, 1481-82 (1987))) ;
80. Padilla Amici Cert. Petition, supra note 46, at 12 (listing Paredez, Pozo and an Ohio intermediate appellate court in stating that "[t]hree courts... have recognized that, to render effective assistance of counsel, criminal defense lawyers must advise at least some noncitizen clients of tile immigration consequences of a conviction") ;
81. infra notes 99-104, 226-38 and accompanying text (discussing Paredez).
82. See Bustos v. White, 521 F.3d 321, 325 (4th Cir. 2008) (stating that there is no Supreme Court precedent establishing that defense counsel provides ineffective assistance for failing to warn a client about the consequence of parole ineligibility).
83. Brady v. United States, 397 U. S. 742, 755 (1970) (quoting Shelton v. United States, 242 F.2d 101, 115 (5th Cir. 1957)) ;
84. see also Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 CORNELL L. REV. 697, 706 (2002) (citing Brady for the proposition that "[t]he Supreme Court created the rule that the Due Process Clause requires the trial court to explain only the direct consequences of conviction" (citing Brady, 397 U. S. at 755)).
85. See, e.g., Steele v. Murphy, 365 F.3d 14, 17 (1st Cir. 2004) (quoting Brady in stating that "a defendant need only be 'fully aware of the direct consequences'" of a guilty plea (quoting Brady, 397 U. S. at 755)).
86. But see Roberts, supra note 15, at 684-89 (critiquing lower federal and state courts' use of Brady's dictum on direct consequences for development of the collateralconsequences rule).
87. INS v. St. Cyr, 533 U. S. 289, 323 n. 50 (2001).
88. See, e.g., State v. Rojas-Martinez, 125 P.3d 930, 937-38 (Utah 2005) ("The practice standards [on counseling clients about deportation consequences] referenced by the Supreme Court were not accompanied by any language that would suggest that it was the Court's intention to cloak these practice guidelines in constitutional garb.").
89. See supra note 11 and accompanying text (describing the Supreme Court's recent grant of certiorari in Padilla).
90. Commonwealth v. Padilla, 253 S. W.3d 482, 483-84 (Ky. 2008) (citing Commonwealth v. Fuartado, 170 S. W.3d 384 (Ky. 2005)) (finding lawyer's inaccurate advice to client regarding effect of guilty plea on immigration status to be a collateral consequence and therefore outside the scope of Sixth Amendment right-to-counsel protection)
91. cert, granted, 129 S. Ct. 1317 (2009) ;
92. see also infra notes 202-20.
93. See, e.g., United States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002) (holding that "an affirmative misrepresentation by counsel as to the deportation consequences of a guilty plea is today objectively unreasonable" and thus "meets the first prong of the Strickland test") ;
94. El-Nobani v. United States, 287 F.3d 417, 422 (6th Cir. 2002) ("Because the government did not misrepresent to petitioner the consequences of his plea, petitioner cannot show that his plea was involuntary and unknowing.").
95. See supra notes 1-7 and accompanying text (discussing Russell).
96. Roberti v. State, 782 So. 2d 919, 920 (Fla. Dist. Ct. App. 2001). A nolo contendere plea, also known as a "no contest" plea, has the same force and effect as a guilty plea for the purposes of having a conviction and serving a sentence; the only difference is that such a plea allows the defendant to neither admit nor deny the charges.
97. See North Carolina v. Alford, 400 U. S. 25, 36 n. 8 (1970).
98. See Roberti, 782 So. 2d at 920.
99. FLA. STAT. §394.917 (2) (2006) (stating that civil confinement begins after "incarcerative portion of all criminal sentences") ;
100. see also id. §394.912 (9) (listing qualifying offenses). The Ryce Act defines "convicted of a sexually violent offense" to include, among other things, both guilty and nolo contendere pleas.
101. Id. § 394.912 (2).
102. Id. § 394.912 (9) (listing two requirements for determination that someone is a "sexually violent predator", one of which is a conviction for an enumerated "sexually violent offense").
103. Roberti, 782 So. 2d at 920;
104. see also FLA. STAT. § 394.925.
105. Roberti, 782 So. 2d at 920. Three years after the Roberti decision, the Florida Supreme Court agreed.
106. See State v. Harris, 881 So. 2d 1079, 1083-84 (Fla. 2004) (rejecting argument that possibility of involuntary civil commitment under the Ryce Act violated the express terms of a plea bargain which failed to mention civil commitment).
107. Roberti, 782 So. 2d at 920 (citations omitted).
108. See Hill v. Lockhart, 474 U. S. 52, 57 (1985) (finding the Strickland test applicable in guilty-plea context) ;
109. Strickland v. Washington, 466 U. S. 668, 687 (1984) (announcing the twoprong ineffective-assistance test).
110. See Hill, 474 U. S. at 59 ("[I]n order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." (footnote omitted)) ;
111. Roberti, 782 So. 2d at 920 (stating that to fulfill the prejudice requirement, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial"). A prejudice-prong analysis is hard enough to apply in a typical claim of ineffectiveness in the guilty-plea context, where a court must decide, ex post facto, if some piece of information would have made a difference in a trial that never happened. The Hill court explained: [T]he determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial.
112. Hill, 474 U. S. at 59. To build on one of Hills examples, if counsel failed to investigate a potential alibi defense before the client pleaded guilty, any post-conviction reviewing court would have to determine whether the alibi evidence would have made a difference given the evidence that the prosecution might have put forth had there been a trial. Such an analysis does not even apply when the ineffectiveness claim relates to misadvice about a collateral consequence. For example, civil commitment would certainly factor largely into a person's decision about whether to plead guilty, but it is not information that would be evidence at a trial. Thus, it would not lend itself to a determination of whether counsel would have changed his recommendation about the plea due to a prediction that the trial outcome would have been different Courts could attempt to examine the strength of the evidence that was never admitted in a trial in order to discern whether the person weighing the pros and cons of a plea versus a trial would have still pleaded guilty with correct information about the collateral consequence in the equation. However, this would lead to an even more convoluted inquiry than that which now exists in a non-collateral-consequences case. Instead, courts should simply determine whether the defendant credibly demonstrated that he would have taken his chances at trial had he known about, say, the mandatory deportation consequences of his guilty plea.
113. See, e.g., People v. Soriano, 240 Cal. Rptr. 328, 334 (Cal. Ct. App. 1987) (describing Defendant's affidavit, which stated that his attorney specifically advised him that his guilty plea would neither prevent him from obtaining citizenship nor lead to his deportation: "Based on these assurances, I entered my plea of guilty.... Had I known that I was exposing myself to deportation by pleading guilty, I would never have entered such plea.").
114. Obviously, Roberti would have benefited more from correct advice the first time around. However, given the post-conviction position that he was in, misadvice gave him an evidentiary hearing where silence would not. In any case, according to the electronic docket of the Manatee County Clerk of Circuit Court, the court denied Roberti's motion to withdraw his guilty plea on remand. Denial of Motion for Evidentiary to Show Defendant Was Misadvised, Roberti, 782 So. 2d 919 (Fla. Dist. Ct. App. 2001) (No. 168). According to the Florida Department of Corrections, Roberti remained incarcerated until his death in custody on February 2, 2009. Fla. Dep't of Corrs., Inmate Release Information Search, http://www.dc.state. fl.us/InmateReleases/search.asp (enter "Roberti" into the "Last Name" field, enter "Ronald" into the "First Name" field, enter "S06276" into the "DC Number" field, and click "Submit Request") (last visited Nov. 11, 2009). The affirmative-misrepresentation exception to the collateral-consequences rule is not unique to the Ryce Act (sexually violent predator) context in Florida. Various lower Florida state-court decisions have also applied it with respect to the consequences of potential deportation, citizenship applications, sentence enhancements and the right to vote.
115. See Alguno v. State, 892 So. 2d 1200, 1201 (Fla. Dist. Ct. App. 2005) (citing Florida cases addressing affirmative misrepresentations about these consequences). In addition, the affirmativemisrepresentation exception applies to prosecutors and judges as well as defense lawyers, since guilty pleas based on misinformation violate the due process knowledge and voluntariness standards.
116. See, e.g., United States v. Russell, 686 F.2d 35, 36 (D. C. Cir. 1982) (finding that, since the "record on appeal makes it clear that the prosecution made misrepresentations concerning the deportation consequences of the defendant's plea..., we must vacate the defendant's guilty plea") ;
117. United States v. Briscoe, 432 F.2d 1351, 1354 (D. C. Cir. 1970) ("Calculations of the likelihood of deportation may thus rightly be included in the judgment as to whether an accused should plead guilty, and any actions by Government counsel that create a misapprehension as to that likelihood may undercut the voluntariness of the plea.").
118. United States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002).
119. Downs-Morgan v. United States, 765 F.2d 1534, 1539 n. 11 (11th Cir. 1985).
120. Yordan v. Dugger, 909 F.2d 474, 478 (11 th Cir. 1990) ;
121. see also Goodall v. United States, 759 A.2d 1077, 1082-83 (D. C. Cir. 2000)
122. (stating that "representation is constitutionally deficient if counsel provides materially erroneous information regarding the parole consequences of a plea, and the defendant relies upon it" (emphasis added)). There are other difficulties with administration of the exception, such as the evidence required to demonstrate misadvice. At least one court would require trial counsel to sign an affidavit admitting to having given his client incorrect advice. Downs-Morgan, 765 F.2d at 1538 n. 8
123. (citing United States v. Santelises, 476 F.2d 787, 790 n. 3 (2d Cir. 1973)). This means that trial counsel would have to admit malpractice, or at least some elements of that tort
124. See infra Part III. B.7 (discussing obstacles to successful malpractice claims against criminal defense lawyers). Such a requirement is especially problematic in a jurisdiction that distinguishes between "good faith" and "patently erroneous" advice where counsel would have to swear to providing patently erroneous advice.
125. *13 (D. N. D. May 1, 2009).
126. Id.
127. *1.
128. *5.
129. *10.
130. *12.
131. *5.
132. Hill v. Lockhart, 474 U. S. 52 (1985).
133. Id. at 54-55 (noting that "[a]ccording to petitioner, his attorney had told him that if he pleaded guilty he would become eligible for parole after serving one-third of his prison sentence", when "[i]n fact, because petitioner previously had been convicted of a felony in Florida, he was classified under Arkansas law as a 'second offender' and was required to serve one-half of his sentence before becoming eligible for parole").
134. Id. at 58.
135. Id. at 56
136. (citing McMann v. Richardson, 397 U. S. 759, 771 (1970), for the proposition that prong one of Strickland asks whether the advice at issue was "within the range of competence demanded of attorneys in criminal cases").
137. In the Eighth Circuit's opinion below in Hill, the court did find that "[t]he details of parole eligibility are considered collateral rather than direct consequences of a plea, of which a defendant need not be informed before pleading guilty." Hill v. Lockhart, 731 F.2d 568, 570 (8th Cir. 1984) ;
138. see also Bustos v. White, 521 F.3d 321, 325-26 (4th Cir. 2008) (noting that "the majority of circuits deciding the issue have concluded that parole ineligibility is only a collateral consequence", including the Second, Fifth, Sixth, Eighth, and Eleventh Circuits) ;
139. cf. Sparks v. Sowders, 852 F.2d 882, 885 (6th Cir. 1988) (noting how the Sixth Circuit "has yet to decide whether erroneous advice concerning parole eligibility can amount to ineffective assistance of counsel" and citing "other circuits which have held or noted that misinformation concerning parole eligibility can be ineffective assistance of counsel").
140. Hill, 474 U. S. at 60. Justice White, in his concurrence, would have denied Hill an evidentiary hearing because paperwork in the case suggested that defense counsel did not know that Hill had a prior out-of-state conviction, and Hill thus provided no factual basis for the claim that counsel misled him.
141. Id. at 61 (White, J., concurring). However, Justice White went on to note that, had Hill provided such a factual basis, Hill would have provided sufficient allegations of prejudice to win a hearing. He also found that, if a defendant demonstrated affirmative misadvice about parole eligibility, the defendant would satisfy the unreasonableattorney-behavior prong of the ineffective-assistance test.
142. Id. at 62.
143. Id. at 56 (emphasis added).
144. Id. (emphasis added).
145. See Roberts, supra note 15, at 693 (discussing the defendant-attorney relationship).
146. Brady v. United States, 397 U. S. 742 (1970).
147. Id. at 755 (quoting Shelton v. United States, 242 F.2d 101, 115 (5th Cir. 1957)) ;
148. see also Puckett v. United States, 129 S. Ct. 1423, 1430 n. 1 (2009) (noting how Brady's statement about misrepresentadon was dictum).
149. In a recent Supreme Court decision, Justice Scalia suggested that-should the Court have occasion to review Brady's dictum on misrepresentations-it might take a restrictive view of a defendant's ability to seek a remedy under such circumstances. Id. ("[I]t is hornbook law that misrepresentation requires an intent at the time of contracting not to perform." (citation omitted)). While it is unclear just what the Court meant in this one-line reference to the Brady language, the argument could be made that only intentional misrepresentations qualify for potential plea withdrawal. This would severely curtail the affirmative-misadvice exception as understood in most jurisdictions, and would bar plea wididrawal except in the rare circumstance when defense counsel, the prosecutor, or the judge purposely misled the defendant. Such a restrictive reading, however, seems unlikely in light of Hill v. Lockhart and other precedent.
150. See Roger Fairfax, Harmless Constitutional Error and the Institutional Significance of the Jury, 76 FORDHAM L. REV. 2027, 2030-31 (2008) (critiquing the Court's failure to include jury-trial rights in the exceptions-to-harmless-error law for "structural" problems).
151. Justice Stevens has voiced his concern that: Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice. The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions result from such pleas. Moreover, the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea. United States v. Timmreck, 441 U. S. 780, 784 (1979)
152. (quoting United States v. Smith, 440 F.2d 521, 528-29 (7th Cir. 1971) (Stevens, J., dissenting)).
153. This belief may be unfounded, or at least exaggerated. See infra text accompanying note 295 (explaining how any collateral consequence will play a lesser role in most defendants' decision-making process when the prosecution has strong evidence of guilt and thus a conviction after trial is highly likely).
154. See THE SPANGENBERG GROUP, STATUS OF INDIGENT DEFENSE IN NEW YORK: A STUDY FOR CHIEF JUDGE KAYE'S COMMISSION ON THE FUTURE OF INDIGENT DEFENSE SERVICES 39-52 (2006), available at http://www.courts.state.ny. us/ip/indigentdefense-commission/SpangenbergGroup Report.pdf [hereinafter SPANGENBERG STUDY] (describing, in report on state of indigent defense in New York State, overarching concern with cost and efficiency).
155. This is a short-term view because over the full life of a criminal case it is more efficient to offer more information up front so that defendants do not later have-and pursue-claims of ineffective assistance of counsel or a due-process violation based upon the failure to warn about a serious consequence.
156. See, e.g., N. Y. COUNTY LAW § 722 (3) (McKinney 2004 & Supp. 2009) (describing assigned counsel plan as "[r]epresentation by counsel furnished pursuant to a plan of a bar association in each county or the city in which a county is wholly contained whereby the services of private counsel are rotated and coordinated by an administrator, and such administrator may be compensated for such service") ;
157. see also AM. BAR ASS'N STANDING COMM. ON LEGAL AID and INDIGENT DEFENDANTS, GIDEONS BROKEN PROMISE: AMERICA'S CONTINUING QUEST FOR EQUAL JUSTICE: A REPORT ON THE AMERICAN BAR ASSOCIATION'S HEARINGS ON THE RIGHT TO COUNSEL IN CRIMINAL PROCEEDINGS 2 (2004), available at http://www.abanet.org/legalservices/sclaid/defender/brokenpromise/fullreport. pdf [hereinafter GIDEON'S BROKEN PROMISE] (listing various state indigent defense systems lacking independence from the judiciary).
158. GIDEON'S BROKEN PROMISE, supra note 94, at 10.
159. See, e.g., id. at 16-19 (discussing factors influencing minimal representation) ;
160. see also SPANGENBERG STUDY, supra note 92, at 39-52 (describing the sometimes overt pressures on defenders to keep representation cheap).
161. See SPANCENBERG STUDY, supra note 92, at 39-52 ("While a lack of independence from the counties exists with all providers, it is perhaps most true for the public defenders who are appointed and serve at the pleasure of the [N. Y.] counties.").
162. Id. at 89.
163. State v. Paredez, 101 P.3d 799, 801 (N. M. 2004).
164. Id. at 803.
165. Id. at 805 ("[D]efense attorneys are obligated to determine the immigration status of their clients. If a client is a non-citizen, the attorney must advise that client of the specific immigration consequences of pleading guilty, including whether deportation would be virtually certain. "). It is important to note that under the Paredez ruling, a defendant does not win plea withdrawal simply by demonstrating misadvice (although even this is no simple task, see supra notes 67-76 and accompanying text). He must also prove prejudice, a formidable barrier given the courts' demonstrated willingness to find lack of prejudice even in situations where the requisite "reasonable probability" of a different outcome
166. see Strickland v. Washington, 466 U. S. 668, 694 (1984), seems clear to any trial lawyer.
167. See, e.g., State v. Franklin, 89 S. W.3d 865, 872 (Ark. 2002) (finding no prejudice despite counsel's failure to properly inform defendant of his right to testify, file any discovery or evidentiary motions; request a limiting instruction, object to gunshot residue testimony, and present any mitigating evidence at the sentencing phase of a murder trial) ;
168. McFarland v. State, 928 S. W.2d 482, 505-06 (Tex. Crim. App. 1996) (finding no prejudice where defense attorney slept during death-penalty trial because McFarland failed to show when or for how long attorney slept, or if the jury took note of it, and because cocounsel's "decision" to let counsel sleep might have been a strategic move to gain jury sympathy). Although the high prejudice hurdle makes ineffectiveness claims difficult to prove, even in cases involving affirmative misadvice, defense counsel still operates in the shadow of such standards and is thus influenced by them.
169. Paredez, 101 P.3d at 805 (quoting John J. Francis, Failure to Advise Non-Citizens of Immigration Consequences of Criminal Convictions: Should This Be Grounds to Withdraw a Guilty Plea?, 36 U. MICH. J.L. REFORM 691, 726 (2003)).
170. Id.
171. Id. (quoting Francis, supra note 102, at 726) (alteration in original).
172. State constitutional law mandating advisement about collateral consequences is another potentially large influence on behavior. See, e.g., State v. Bellamy, 835 A.2d 1231, 1238 (N. J. 2003) (holding that "when the consequence of a plea may be so severe that a defendant may be confined for the remainder of his or her life [under New Jersey's Sexually Violent Predator Act], fundamental fairness demands that the trial court inform defendant of that possible consequence" (emphasis added)). Although Bellamy held that the judge, not defense counsel, must provide warnings, such a constitutional mandate will clearly have an effect on the attorney-client conversation. Unlike New Jersey, however, most states simply track established federal constitutional law in interpreting their own constitutions
173. see WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 2.7 (a) (3d ed. 2008), or do not-for various reasons-even analyze duty-to-warn cases under state constitutional provisions.
174. See, e.g., Commonwealth v. Padilla, 253 S. W.3d 482, 484-85 (Ky. 2008) (applying federal constitutional law)
175. cert. granted, 129 S. Ct. 1317 (2009). There are thus very few state constitutional decisions extending a duty to warn about non-penal consequences.
176. INS v. St. Cyr, 533 U. S. 289, 323 n. 50 (2001). Although St. Cyr's admonishment was only dictum, it suggests that the Court-at least as constituted in 2001-might be receptive to establishing a duty to warn defendants about immigration consequences under a Sixth Amendment analysis.
177. As one commentator has noted, "[T]here are essentially three levels on which to assess poor lawyering: the constitutional level, the civil level, and the disciplinary level." Meredith J. Duncan, The (So-Called) Liability of Criminal Defense Attorneys: A System in Need of Reform, 2002 BYU L. REV. 1, 5. These mechanisms are all "separate, each relies upon the satisfaction of different legal tests, and the fact that a criminal defense attorney's misconduct has been conclusively established in one setting will not inevitably dictate the same result in a proceeding in one of the other venues." JOHN M. BURKOFF, CRIMINAL DEFENSE ETHICS: LAW & LIABILITY § 1:8 (2d ed. 2008).
178. See U. S. Dep't of Justice, Indigent Defense Statistics, http://www.ojp. usdoj.gov/bjs/id.htm (last visited Nov. 11, 2009) (stating that in 1999, in the nation's most populous one hundred counties, public defenders handled 82% of the 4.2 million cases) ;
179. see also Radha Iyengar, An Analysis of the Performance of Federal Indigent Defense Counsel 34 (Nat'l Bureau of Econ. Research, Working Paper No. 13187, 2007) (finding, in a sample of 115, 415 federal criminal cases from 1997-2001, that 72.9% of defendants qualified as indigent for the purpose of having counsel assigned).
180. See GIDEON's BROKEN PROMISE, supra note 94, at 17-18 (finding that public defenders' offices and criminal defense lawyers operate under caseloads that are far above recommended numerical standards, and some offices have even been forced to withdraw from representation due to such overload).
181. See Jane Fritsch & David Rohde, Two-Tier Justice: Lawyers Often Fail New York's Poor, N. Y. TIMES, Apr. 8, 2001, at A1 (focusing, in first of three articles addressing the problems facing criminal defendants in New York City courts, on 137 homicide cases handled by courtappointed lawyers in 2000, and describing their failure to employ even the most basic trial strategy, including the failure to inform a defendant of his right not to testify).
182. See generally Michael McConville & Chester L. Mirsky, Criminal Defense of the Poor in New York City, 15 N. Y. U. REV. L. & SOC. CHANGE 581, 746-74 (1987) (describing poor lawyering practices of New York City indigent defense-panel attorneys studied in mid-1980s, including attorneys' failures to file discovery motions and investigate, even in most homicide cases).
183. Susannah A. Nesmith, Dade Public Defender: Caseload Is Untenable; Miami-Dade's Public Defender Testifies About How Overworked His Office Is in a Bid to Reduce His Caseload, MIAMI HERALD, July 31, 2008, available at http://www.nacdl.org/public.nsf/defenseupdates/Florida085 ("Several other public defenders around the state [of Florida] have refused to take some cases because of underfunding....").
184. See generally Darryl K. Brown, Rationing Criminal Defense Entitlements: An Argument from Institutional Design, 104 COLUM. L. REV. 801 (2004) (arguing that underfunding of indigent defense is a long-term reality, and attorneys and judges must thus make conscious decisions about the allocation of scarce resources) ;
185. John B. Mitchell, Redefining the Sixth Amendment, 67 S. CAL. L. REV. 1215 (1994) (suggesting an ethical approach to the allocation of scarce defense resources among indigent criminal defendants) ;
186. cf. Michael Pinard, Broadening the Holistic Mindset: Incorporating Collateral Consequences and Reentry Into Criminal Defense Lawyering, 31 FORDHAM URB. L. J. 1067, 1089-90 (2004) (discrediting argument that requiring defense counsel to give warnings about applicable collateral consequence imposes too great a burden on defense counsel's limited time resources).
187. See supra notes 25-30, infra notes 256-58 and accompanying text (discussing growth in collateral consequences).
188. See, e.g., GA. PUB. DEFENDER STANDARDS COUNCIL, NEW ATTORNEY TRAINING AND MENTORING PLAN (2006)
189. available at http://training.gpdsc.com/tilpp/mentoring-plan. pdf [hereinafter GA. PUB. DEFENDER STANDARDS] (listing sentencing training that includes "Collateral Consequences" and "Immigration Consequences & Ethical & Professional Considerations") ; Reentry Net: Serving People from Arrest to Reintegration, http://www.reentry.net/(last visited Nov. 11, 2009) (listing training opportunities and other resources about collateral consequences of criminal convictions).
190. Certainly, attorneys and judges can adhere to norms that rise above the minimum requirements set out in the governing body of rules. This is particularly likely to happen when an attorney practices in an environment that emphasizes a particular area or strives to a generally high standard of practice. For example, there are defender offices that work to incorporate collateral consequences and reentry into daily practice by understanding the critical need to address these issues both up front-before any disposition of the criminal case-and after the individual has served his sentence or has been convicted.
191. See infra note 178 (describing such offices).
192. UNIF. ACT ON COLLATERAL CONSEQUENCES OF CONVICTIONS §5 cmt. (Draft 2008), available at http://www.law.upenn. edu/bll/archives/ulc/ucsada/2008-amdraft.pdf;
193. see also Brief of Petitioner at 17, Padilla v. Kentucky, No. 08-51 (U. S. May 25, 2009), 2009 WL 1497552 (stating that a "solid minority of states (23 plus the District of Columbia) by statute or rule require judges to warn noncitizens of the immigration consequences of guilty pleas") ;
194. *20 ("Thirty jurisdictions including the District of Columbia and Puerto Rico have statutes, rules, or standard plea forms that require a defendant to receive notice of potential immigration consequences before the court will accept his guilty plea."). For a survey of the various rulebased approaches that states have taken with respect to the duty to advise on immigration consequences prior to guilty pleas
195. see Attila Bogdan, Guilty Pleas by Non-Citizens in Illinois: Immigration Consequences Reconsidered, 53 DEPAUL L. REV. 19, 49-58 (2003).
196. See, e.g., TENN. CODE ANN. § 40-14-109 (b) (West 2007) (requiring trial court accepting guilty plea to warn defendant that "from the moment of conviction for a domestic violence offense the defendant will never again be able to lawfully possess or buy a firearm of any kind" and allowing plea acceptance only if "defendant clearly states on the record that the defendant is aware of [this] consequence").
197. See, e.g., IND. CODE ANN. § 35-35-1-2 (a) (4) (West 2008) (firearms) ;
198. WYO. R. CRIM. P. 11 (b) (1) (requiring trial court accepting guilty plea to advise defendant that a controlled substance conviction may result in loss of federal benefits).
199. See MASS. R. CRIM. P. 12 (c) (3) (B) (requiring trial judge to inform defendant on the record "of any different or additional punishment based upon... sexually dangerous persons provisions of the General Laws") ;
200. see also FLA. R. CRIM. P. 3.172 (c) (8) (requiring that judges inform defendants of deportation consequences of guilty pleas) ;
201. Steele v. Murphy, 365 F.3d 14, 19 n. 2 (1st Cir. 2004) (noting Massachusetts requirement to warn about civil commitment but stating that "[f]ailure to follow this state procedural rule does not affect our analysis of Steele's federal constitutional claim").
202. FED. R. CRIM. P. 11;
203. see also United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir. 1988) ("Rule 11 does not require a sentencing court to explain 'collateral' consequences of a guilty plea to a defendant."). There is no Rule 11 duty to warn about immigration despite recommendations, at hearings to amend the rule, that such warnings be given. Advisory Comm. on Criminal Rules, Minutes of the Advisory Committee on Federal Rules of Criminal Procedure 9 (Apr. 28-29, 2003), available at http://www.uscourts.gov/rules/Minutes/Min4- 2003.pdf (detailing 5-6 vote that failed to pass "an amendment to Rule 11 that would require the court to inform an alien who is pleading guilty of the possible collateral consequences that might result, i.e., deportation") ;
204. see also United States v. Del Rosario, 902 F.2d 55, 61 (D. C. Cir. 1990) (Mikva, J., concurring). In his concurrence to Del Rosario, Judge Mikva noted: I would hope that the Rules Committee of the Judicial Conference would consider amending Rule 11... to require a judge taking a guilty plea to inform an alien that pleading guilty might result in deportation-at least when the judge is made aware of the defendant's alien status before accepting his plea. Id.
205. Michel v. United States, 507 F.2d 461, 466 (2d Cir. 1974) ;
206. see also State v. Paredez, 101 P.3d 799, 803-04 (N. M. 2004) ("Our conclusion that the district court did not err in its admonition to the Defendant does not mean that Defendant's attorney was relieved from informing him that he almost certainly would be deported if his guilty plea was accepted by the court."). That "a defendant... has little need to hear a ritual recitation of his rights by a trial judge" obviously does not imply the contrary proposition, that a defendant to whom a court has read a pro forma advisement... cannot profit from competent legal advice about that advisement or concerns it may raise, under the circumstances, for that particular defendant. In re Resendiz, 19 P.3d 1171, 1178 n. 5 (Cal. 2001) (citation omitted).
207. See Manuel D. Vargas, Immigration Consequences of Guilty Pleas or Convictions, 30 N. Y. U. REV. L. & SOC. CHANGE 701, 709 (2006) (discussing New York's advisement statute).
208. See, e.g., ME. R. CRIM. P. 11 (allowing judge to adjourn plea proceedings after warning about a particular consequence in order to give the defendant time to consult with his attorney).
209. N. Y. CRIM. PROC. LAW § 220.50 (7) (McKinney 2007).
210. Id. (noting how failure to advise shall not "afford a defendant any rights in a subsequent proceeding relating to such defendant's deportation, exclusion or denial of naturalization").
211. See, e.g., MD. R. 4-242 (e) (West 2009) ("The omission of advice concerning the collateral consequences of a plea does not itself mandate that the plea be declared invalid.") ;
212. R. I. GEN. LAWS § 12-12-22 (a) (2002) (mandating immigration warning but stating that "[f]ailure to so inform the defendant at the arraignment shall not invalidate any action subsequently taken by the court").
213. *2 (Mass. App. Ct. Feb. 17, 2006) (denying defendant's motion to withdraw his guilty plea and noting that "[w]hile compliance with the procedures set out in [the state statute requiring notification of the sexually dangerous persons provision for civil commitment] is mandatory, adherence to or departure from them is but one factor to be considered in resolving whether a plea was knowingly and voluntarily made") ;
214. see also Lopez v. State, 71 S. W.3d 511, 516 (Tex. Ct. App. 2002) (holding that although sex-offender registration is a "serious" consequence, and Texas court rules require a pre-plea warning to defendants about it, defendant has no right to withdraw his plea for failure to receive this warning because his "substantial rights were not affected by the trial court's failure to comply"). Some states do explicitly allow for plea withdrawal for failure to follow an advisement rule.
215. See, e.g., MASS. GEN. LAWS ch. 278, § 29D (2008) (stating that if the court fails to advise about immigration consequences, and if the defendant can later "show[] that his plea and conviction may have or has had one of the enumerated consequences", the court "shall... permit the defendant to withdraw the plea of guilty") ;
216. WIS. STAT. ANN. § 971.08 (l) - (2) (West 2008) (requiring trial court to advise about immigration consequences and allowing plea withdrawal upon failure to warn with showing that plea is "likely to result in the defendant's deportation, exclusion from admission to this country or denial of naturalization") ;
217. State v. Douangmala, 646 N. W.2d 1, 10 (Wis. 2002) (holding that court's failure to advise about deportation leads to the right to withdraw plea without regard to harmless-error analysis) ;
218. Sango-Dema v. District Director, I. N. S., 122 F. Supp. 2d 213, 217 (D. Mass. 2000) (noting how state law mandates pre-plea advisement about deportation consequences and how, "[w]ithout such a notice, the court must vacate the plea") (citation omitted). However, the majority are silent on the issue of remedy for such a violation.
219. See, e.g., N. C. GEN. STAT. § 15A-1022 (2007) ;
220. TEX. CODE CIRIM. PROC. ANN. art. 26.13 (a) (4) (Vernon 2006). In these jurisdictions, the likely outcome will be to deny plea withdrawal, particularly with the constitutional backdrop of a rule allowing silence.
221. See, e.g., R. I. GEN. LAWS § 12-12-22 (c) (2002) (allowing a defendant to withdraw a plea after showing that he was not warned and will face immigration consequences).
222. 8 U. S. C. § 1101 (a) (48) (A) (i) (Supp. 1997) ;
223. see also Commonwealth v. Villalobos, 777 N. E.2d 116, 119-20 (Mass. 2002) (describing how Villalobos would be subject to deportation under federal immigration law based on admission to the underlying facts of the crime, despite fact that court would dismiss all charges upon satisfaction of certain conditions) ;
224. Susan L. Pilcher, Justice Without a Blindfold: Criminal Proceedings and the Alien Defendant, 50 ARK. L. REV. 269, 320-24 (1997) (describing a situation where a defendant is not convicted under state law but is seen as convicted-and thus deportable-under federal immigration law).
225. See supra notes 116-20 and accompanying text (listing the few states that require warnings for consequences other than immigration).
226. See infra notes 172-74 and accompanying text (discussing how effective-assistance jurisprudence uses professional standards and other sources in determining what constitutes competent attorney behavior under the first prong of Strickland's effectiveness test).
227. See Chambers v. NASCO, Inc., 501 U. S. 32, 43 (1991) (referring to inherent power of federal courts to regulate and discipline those who appear before them).
228. MODEL RULES OF PROF'L CONDUCT (2004). Only California follows another model. CALIFORNIA RULES OF PROF'L CONDUCT (2009), available at http://calbar.ca.gov/calbar/pdfs/rules/Rules-Professional-Conduct.pdf;
229. see also Am. Legal Ethics Library, Topical Overview, Index of Narratives, http://www.law.cornell.edU/ethics/comparative/index.htm#1.1 (last visited Nov. 11, 2009) (listing adoption status of Model Rules by state).
230. See infra Part III. B.4 (discussing professional standards). However, professional standards such as the American Bar Association's Defense Function Standards "have been relied upon extensively by courts, by state and local bar ethics committees, and by state and local lawyer disciplinary agencies in assessing the appropriate role of criminal defense counsel in particular problematic situations."
231. BURKOFF, supra note 107, § 1:5.
232. MODEL RULES OF PROF'L CONDUCT R.1.4 (2004).
233. R. 1.1 cmt. 6 ("To maintain the requisite knowledge and skill, a lawyer should... engage in continuing study and education....").
234. R. 1.1. Comment 2 to Rule 1.1 further states: A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar.... A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representadon can also be provided thugh the association of a lawyer of established competence in the field in quesdon. Id. cmt. 2.
235. R. 2.1. While most collateral consequences cannot be categorized as non-legal, there are some that are not located in state or federal law or local regulation. For example, a person who pleads guilty to misdemeanor theft may not be statutorily barred from particular employment, but might live in an area where the local employers' practice is to require "voluntary" fingerprinting of all prospective employees. Under this particular ethical canon, a conviction's effects on that individual's economic well-being should be a factor that a criminal defense attorney is aware of and includes in counseling about the consequences of any guilty plea.
236. In re Black, 21 Disciplinary Bd. Rptr. 6, 6-18 (Or. 2007), available at http://www.osbar.org/-docs/dbreport/dbr21.pdf.
237. Id. at 14.
238. Id. at 15.
239. Id. at 7, 16-18.
240. Id. at 18.
241. Black, 21 Disciplinary Bd. Rptr. at 16.
242. See, e.g., United States v. Nickerson, 556 F.3d 1014, 1018-20 (9th Cir. 2009) (finding that defense counsel's admitted ethical code violation, namely contacting a witness she knew to be represented after the witness's attorney told her not to speak with the witness, did not constitute per se ineffective assistance; nor did it constitute ineffective assistance under the traditional two-prong test, because Nickerson failed to demonstrate that the ethical violation prejudiced him).
243. See supra Part II. B (discussing how lack of advice is allowed but affirmative misadvice is not). Under Oregon state constitutional law, the result may have been different. This is because Oregon is in the small minority of jurisdictions that require defense counsel to affirmatively warn clients about the deportation consequences of any guilty plea. See Gonzalez v. State, 134 P.3d 955, 958 (Or. 2006) ;
244. see also OR. REV. STAT. § 135.385 (2) (d) (2007) (requiring a judge accepting a guilty plea to inform non-citizen defendants that conviction of a crime may lead to deportation and other immigration consequences). However, the Oregon rule applies only to immigration consequences; state constitutional law does not require advisement about other serious collateral consequences.
245. See, e.g., Rodriguez-Moreno v. State, 208 Or. App. 659, 664 (2006) (finding defense counsel provided constitutionally adequate assistance despite failing to inform the defendant, prior to a guilty plea, that the guilty plea would require mandatory sexoffender registration).
246. Pinard, supra note 112, at 1082-83.
247. See, e.g., JOINT COMM. ON PROF'L SANCTIONS, STANDARDS FOR IMPOSING LAWYER SANCTIONS §§ 2.2-.8 (2005), available at http://www.abanet.org/cpr/regulation/standards-sanctions.pdf (setting out potential sanctions) ;
248. see also MODEL RULES OF PROF'L CONDUCT R. 8.5 (a) (2004) ("A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs."). In addition, the Rules provide that "[a] lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction". Id.
249. See generally Duncan, supra note 107, at 43 (noting how in the majority of jurisdictions, criminal defense lawyers rarely face any disciplinary sanction where a former client claims ineffective assistance of counsel) ;
250. see also Leslie C. Levin, The Case for Less Secrecy in Lawyer Discipline, 20 GEO. J. LEGAL ETHICS 1, 1 (2007) (noting that state disciplinary agencies formally sanction only about 5600 lawyers per year, despite receiving more than 125, 000 lawyer discipline complaints per year).
251. See Anita Bernstein, Pitfalls Ahead: A Manifesto for the Training of Lawyers, 94 CORNELL L. REV. 479, 487 (2009) ("On the relatively rare occasion that an errant lawyer receives some form of professional discipline, that form is likely to be the gentlest arrow in the quiver: the admonition or private reprimand.") ;
252. see also Duncan, supra note 107, at 43.
253. Inst, for Law & Justice, Compendium of Standards for Indigent Defense Systems (Neal Miller & Peter Ohlhausen eds., 2000), available at http://www.mynlada.org/defender/DOJ/intro.htm.
254. STANDARDS FOR CRIMINAL JUSTICE: COLLATERAL SANCTIONS AND DISCRETIONARY DISQUALIFICATION OF CONVICTED PERSONS pts. I-III (3d ed. 2004) ;
255. see also Margaret Colgate Love, Starting Over with a Clean Slate: In Praise of a Forgotten Section of the Model Penal Code, 30 FORDHAM URB. L. J. 1705, 1727 (2003) (stating that the "new ABA Standards on Collateral Sanctions and Discretionary Disqualification are the first effort since the 1970s to address the collateral legal consequences of a conviction in a coherent and comprehensive fashion"). This section focuses on the ABA Standards because it is to those-along with other, non-standardbased practices such as local custom-that the Supreme Court has turned in determining the prevailing professional norms for competent defense-counsel behavior when analyzing ineffective-assistance-of- counsel claims.
256. See infra notes 172-74 and accompanying text (discussing incorporation of ABA Standards into constitutional jurisprudence). Other standards, however, also address defense counsel's duty to warn about collateral consequences. For example, the National Legal Aid and Defender Association's Performance Guidelines for Criminal Defense Representation's Blackletter Standards state that "[c]ounsel should be familiar with direct and collateral consequences of the sentence and judgment, including:... (8) deportation; (9) use of the conviction for sentence enhancement in future proceedings; (10) loss of civil rights; (11) impact of a fine or restitution and any resulting civil liability, [and] (12) restrictions on or loss of license." PERFORMANCE GUIDELINES FOR CRIMINAL DEFENSE REPRESENTATION § 8.2 (b) (Nat Legal Aid & Defender Ass'n 1995) ;
257. see also id. § 6.2 (a) ("In order to develop an overall negotiation plan, counsel should be fully aware of, and make sure the client is fully aware of: (1) the maximum term of imprisonment and fine or restitution that may be ordered,... [and] (3) other consequences of conviction such as deportation, and civil disabilities.") ;
258. id. § 6.3 (a) ("Counsel should inform the client of any tentative negotiated agreement reached with the prosecution, and explain to the client the full content of the agreement, and the advantages and disadvantages and the potential consequences of the agreement.").
259. See STANDARDS FOR CRIMINAL JUSTICE: PLEAS OF GUILTY § 14-1.4 (c) (3d ed. 1999) (emphases added).
260. STANDARDS FOR CRIMINAL JUSTICE: Collateral SANCTIONS AND DISCRETIONARY DISQUALIFICATION OF CONVICTED PERSONS §19-1.1 (a) (emphasis added). This definition is quite close to the constitutional jurisprudence's prevailing definition of "direct" consequence.
261. See, e.g., Cuthrell v. Dir., Patuxent Inst., 475 F.2d 1364, 1366 (4th Cir. 1973) ("The distinction between 'direct' and 'collateral' consequences of a plea, while sometimes shaded in the relevant decisions, turns on whether the result represents a definite, immediate and largely automadc effect on the range of the defendant's punishment."). The difference is that the ABA definition encompasses even those sanctions "not included in the [penal] sentence." STANDARDS FOR CRIMINAL JUSTICE: COLLATERAL SANCTIONS AND DISCRETIONARY DISQUALIFICATION OF CONVICTED PERSONS § 19-1.1 (a). For further explanation of the difference between "collateral sanction" and "discretionary disqualification, "
262. see Symposium, ABA Standards for Criminal Justice, Collateral Sanctions and Discretionary Disqualification of Convicted Persons: Black Letter with Commentary, 36 U. TOL. L. REV. 441, 441 (2005).
263. See STANDARDS FOR CRIMINAL JUSTICE: cOLLATERAL SANCTIONS AND DISCRETIONARY DISQUALIFICATION OF CONVICTED PERSONS § 19-1.2 (a) (iv).
264. Id. § 19-1.1 (b). As one report explains: If a medical licensing board by law, regulation or policy "must" deny a license to an applicant with a felony conviction, then it is a collateral sanction, because the effect is automatic. If a medical licensing board "may" deny a license to those with felony convictions, then the regulation or policy is a "disqualification". UNIF. COLLATERAL SANCTIONS AND DISQUALIFICATIONS ACT § 2 cmt. (Discussion Draft 2006), available at http://www.law.upenn. edu/bll/archives/ulc/ucsada/ 2006MarchMtgDraft.pdf. For an important critique of the ABA Standards on Collateral Sanctions and Discretionary Disqualification of Convicted Persons from the perspective of holistic defense
265. see McGregor Smyth, Holistic Is Not a Bad Word: A Criminal Defense Attorney's Guide to Using Invisible Punishments as an Advocacy Strategy, 36 U. TOL. L. REV. 479, 493 (2005).
266. It seems that the ABA drafters had immigration consequences-specifically, deportation-in mind when they drew the "collateral sanction"- "discretionary disqualification" distinction in 2003. Many have argued that, due to the 1996 and later amendments to immigration law, deportation for those convicted of certain crimes is automatic. See Francis, supra note 102, at 709 (noting how, under 1996 immigration-law amendments, "a host of deportation consequences to guilty pleas are certain and almost automatic").
267. Notably, consequences for convicted sex offenders are not expressly listed anywhere in the text of the various ABA Standards. The only mention of civil commitment in the text of the Criminal Justice Standards is in the mental-health section, but this refers to the commitment of convicted individuals in lieu of-and not after having served-the criminal sentence. See CRIMINAL JUSTICE MENTAL HEALTH STANDARDS §7-10.5 (1989). There is mention of sexual offenses more generally in other standards' commentary.
268. This is not to say that the court is better equipped than defense counsel to warn a defendant about relevant consequences. Indeed, the opposite is true. See supra note 121 and accompanying text (describing how some courts have commented on how attorneys are in the best position to inform defendants about consequences). But defense counsel's warnings will usually (and should) take place outside of the courtroom. The judge's on-the-record warnings, as set out in the various standards, should be a safety valve, a check on counsel's effectiveassistance duties. If this is bootstrapped back to defense counsel, then it cannot serve its purpose of catching incompetent warnings about consequences and ensuring knowing and voluntary guilty pleas.
269. STANDARDS FOR CRIMINAL JUSTICE: PLEAS OF GUILTY § 14-1.4 (c) (3d ed. 1999). Another 1999 Standard speaks to counsel's duty to warn her client about collateral consequences. Id. § 14-3.2 (f).
270. STANDARDS FOR CRIMINAL JUSTICE: COLLATERAL SANCTIONS AND DISCRETIONARY DISQUALIFICATION OF CONVICTED PERSONS § 19-2.3 (a) (3d ed. 2004) (notification of collateral sanctions before plea of guilty). Although the Standards do not speak to the prosecutor's role directly, they do note that "[t]he prosecuting attorney, in considering a plea agreement, may agree... where appropriate, to enter an agreement with the defendant regarding the disposition of related civil matters to which the government is or would be a party, including civil penalties and/or civil forfeiture." STANDARDS FOR CRIMINAL JUSTICE: PLEAS OF GUILTY §14-3.1 (c), (c) (iv).
271. STANDARDS FOR CRIMINAL JUSTICE: PLEAS OF GUILTY § 14-3.2 (f). Although this Standard (with its vague "to the extent possible" language) sounds rather weak, the commentary reveals a more rigorous intention. The drafters note how courts distinguish between direct and collateral consequences, and consequently require little in the way of warnings. They go on to state that this provision "strives to set an appropriately high standard, providing that defense counsel should be familiar with, and advise defendants of, all of the possible effects of conviction. "
272. Id. § 14-3.2 (f) cmt. The commentary specifically mentions, as examples, immigration consequences and consequences of drug and sex-offense convictions. Id.
273. Id.
274. Id.
275. *2.
276. STANDARDS FOR CRIMINAL JUSTICE: COLLATERAL SANCTIONS AND DISCRETIONARY DISQUALIFICATION OF CONVICTED PERSONS § 19-2.3 (b) ("Failure of the court or counsel to inform the defendant of applicable collateral sanctions shall not be a basis for withdrawing the plea of guilty, except where otherwise provided by law or rules of procedure, or where the failure renders the plea constitutionally invalid.").
277. SEE SUPRA notes 124-27 and accompanying text (describing different state statutes).
278. Smyth, SUPRA note 156, at 493 (noting how the Standards' explicit bar on plea withdrawal as a remedy for failure to warn is a "fundamental exception" which "undercuts their power.... With this small provision the Standards replicate the most damaging legal distinction between 'collateral' and 'direct' consequences").
279. See UNIF. COLLATERAL CONSEQUENCES OF CONVICTION ACT § 3 (Draft for Approval 2009) available at http://www.law.upenn. edu/bll/archives/ulc/ucsada/2009am-approved.pdf (draft approved on July 15, 2009: Press Release, Unif. Law Comm'n, New Act Addresses Consequences of Criminal Sentencing (July 15, 2009), http://www.nccusl.org/ Update/Desktop Modules/NewsDisplay.aspx?ItemID=217). Aluiough the Act follows the ABA in separating automatic from discrerionary consequences
280. see id. § 2, it does not distinguish between these two categories in its advisement section, with the result being that the scope of advisement is much broader than under the ABA.
281. Id. §§ 5-6. The Act does limit the types of consequences which require advisement Perhaps most significantly, it fails to even mention advisement of any type of sexual-offender consequence, such as registration or the possibility of involuntary civil commitment as a "sexually violent predator."
282. See id. (including, in a non-exclusive list, advisement mandates for the possible inability to obtain certain licenses, permits, jobs, public housing or educational resources; the possibility of a higher sentence if convicted of another crime, or governmental taking of property; prohibitions on voting rights and possession of a firearm; and a variety of immigration consequences). Indeed, the Act specifically exempts sexual-offender registration from the list of consequences that would qualify for an Order of Limited Relief or a Certificate of Restoration of Rights under other sections of the Act. See id. §11.
283. Id. § 3.
284. Id.
285. See Strickland v. Washington, 466 U. S. 668, 688 (1984) (noting that "[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms", and referencing the ABA Standards for Criminal Justice) ;
286. see also Wiggins v. Smith, 539 U. S. 510, 524 (2003) (holding that "[c]ounsel's decision not to expand their investigation... fell short of the professional standards mat prevailed in Maryland in 1989", and noting that "standard practice in Maryland in capital cases at the time of Wiggins' trial included the preparation of a social history report") ;
287. INS v. St. Cyr, 533 U. S. 289, 323 n. 50 (2001) (noting that "competent defense counsel, following the advice of numerous practice guides, would have advised" the defendant about the immigration consequences of his guilty plea).
288. Strickland, 466 U. S. at 688.
289. Wiggins, 539 U. S. at 524
290. (quoting Strickland, 466 U. S. at 688). As one commentator noted, discussing how the ABA Standards have been more robustly incorporated into ineffective assistance jurisprudence, "[I]t is... a positive development systematically because the acceptance of the Guidelines as professional norms draws lawyers attention to specific duties and tasks which are integral to effective representation". John H. Blume & Stacey D. Neumann, "It's Like Déjà Vu All Over Again": Williams v. Taylor, Wiggins v. Smith and Rompilla v. Beard and a (Partial) Return to the Guidelines Approach to the Effective Assistance of Counsel, 34 AM. J. CRIM. L. 127, 159 (2007).
291. See supra note 134.
292. But see supra notes 148-50 and accompanying text (noting how state disciplinary boards rarely pursue charges against criminal defense attorneys).
293. See, e.g., GA. PUB. DEFENDER STANDARDS, supra note 114;
294. LA. PUB. DEFENDERS ASS'N, REFORM: THE LOUISIANA PUBLIC DEFENDER STANDARDS COUNCIL §6. D (A), (A) (b) (2006), available at http://www.lapda.org/PDF%20Files/ LaPDSC%20Second%20Edition%20Jan% 202006%20FINAL.pdf ("Prior to the entry of the plea, counsel should... make certain that the client receives a full explanation of... sanctions and collateral consequences the client will be exposed to by entering a plea.") ;
295. see also ABA COMM'N ON EFFECTIVE CRIM. SANCTIONS, REPORT TO THE HOUSE OF DELEGATES 1 (2007), available at http://meetings.abanet.org/webupload/commupload/ CR209800/newsletterpubs/Report. V. PDF.121306.pdf ("[T]he American Bar Association urges federal, state, territorial, and local governments to encourage prosecutors to inform diemselves of the collateral consequences that may apply in particular cases.").
296. For example, the Santa Clara Public Defender notes: [I]t is important to obtain legal advice from criminal defense counsel and/or immigration counsel regarding the immigration consequences of any pending criminal matter. The Santa Clara County Office of the Public Defender has an immigration attorney that can assist public defender clients in understanding die immigration consequences which may result from a criminal conviction. County of Santa Clara, Office of the Pub. Defender, Immigration Consequences of Criminal Convictions, http://www.sccgov.org/portal/site/opd/(last visited Nov. 11, 2009).
297. See, e.g., MARK STEPHENS, ORIGINS OF THE COMMUNITY LAW OFFICE 19-22 (2008), AVAILABLE AT http://www.pdknox.org/Downloadable/Michigan. zip (describing holistic representation in Knoxville, Tennessee) ;
298. The Bronx Defenders, Our Practice, http://www.bronxdefenders.org/?page= content¶m=our-practice (last visited Nov. 11, 2009) ("[H]olistic defense means that clients... have one place where they can go for any issue, whether it is a case in a courtroom, a problem with a landlord, or a long-standing mental illness.").
299. See supra notes 172-74 and accompanying text (describing how professional standards and local practice are woven into the constitutional landscape of effective assistance).
300. See GIDEON's BROKEN PROMISE, supra note 94, at 2 (describing the three principle ways in which legal services are provided to indigent criminal defendants in the United States).
301. To be sure, there are some important movements to spread the word on these consequences beyond committed defender offices. See, e.g., N. Y. State Defenders Ass'n, Defense Training Calendar, http://www.nysda.org/Training/ Training-Calendars/training-calendars. html (last visited Nov. 11, 2009) (listing classes addressing collateral consequences).
302. See supra notes 114, 181 (describing examples of such opportunities).
303. See Robin Steinberg & David Feige, Cultural Revolution: Transforming the Public Defender's Office, 29 N. Y. U. REV. L. & SOC. CHANGE 123, 123-24 (2004) (describing the "traditional defender office" as, among other things, "lawyer-driven and case-oriented", where "defenders address themselves primarily to the client's immediate legal needs believing that removing or reducing the imminent threat of incarceration is their function.... Once the case is over, so is the relationship with the client-at least until the next arrest.").
304. But see Pinard, supra note 112, at 1088-90 (recognizing this concern, but noting how counseling about collateral consequences could quickly and fairly easily become an integrated component of client counseling).
305. Meredith J. Duncan, Criminal Malpractice: A Lawyer's Holiday, 37 GA. L. REV. 1251, 1255 (2003).
306. 7 AM. JUR. 2D ATTORNEYS AT LAW § 213 (2007).
307. 14 AM. JUR. TRIALS 265 (1968).
308. See supra note 64 and accompanying text (describing the Strickland test).
309. See, e.g., Zeidwick v. Ward, 548 So. 2d 209, 214 (Fla. 1989). The Zeidwick court held: [W]here a defendant in a criminal case has had a full and fair opportunity to present his claim in a prior criminal proceeding, and a judicial determination is made that he has received the effective assistance of counsel, then the defendant/attorney in a subsequent civil malpractice action brought by the criminal defendant may defensively assert collateral estoppel. Id.
310. See Gregory G. Sarno, Legal Malpractice in Defense of Criminal Prosecution, 4 A. L. R.5th 273, § 4 (1992) (discussing the effects of a valid guilty plea).
311. See, e.g., Coscia v. McKenna & Cuneo, 25 P.3d 670, 672 (Cal. 2001) ("In a legal malpractice case arising out of a criminal proceeding, California, like most jurisdictions, also requires proof of actual innocence.") ;
312. see also id. at 673 (listing various public-policy considerations for an "actual innocence" requirement in malpractice cases).
313. See, e.g., Morgano v. Smith, 879 P.2d 735, 736-37 (Nev. 1994) (citing a state statute that holds that a "public defender is immune from suit for malpractice arising out of discretionary decisions made pursuant to his or her duties as a public defender" and explaining that the same rule applies to court-appointed counsel).
314. But see Reese v. Danforth, 406 A.2d 735, 739 (Pa. 1979). The Reese court stated: While the availability of court-appointed counsel to represent indigents is indubitably the public business, we hold that once the appointment of a public defender in a given case is made, his public or state function ceases and thereafter he functions purely as a private attorney concerned with servicing his client Id. Federal law does not provide federal public defenders with immunity from a state-law malpractice suit brought by a former client. Ferri v. Ackerman, 444 U. S. 193, 205 (1979). In addition, state public defenders do not act "under color of state law" when performing a lawyer's traditional functions, and therefore are not subject to suit under 42 U. S. C. § 1983. Polk County v. Dodson, 454 U. S. 312, 325 (1981).
315. For example, civil practitioners may hesitate to accept a malpractice action brought by a former criminal defendant because such actions are both difficult to win and may result in little to no damages. Often, then, defendants must proceed pro se. This is particularly onerous for incarcerated defendants. In addition, with prospects for damages limited and with no potential for the remedy the defendant may really want-plea withdrawal-there is often little incentive for defendants to pursue such actions.
316. Imagine a training on the collateral consequences of criminal convictions, organized to educate criminal defense attorneys on the most common non-penal consequences that their clients may face if convicted. The speaker summarizes the effect of various convictions in the areas of immigration, housing, public benefits, family law, and employment. One participant, perhaps concerned because she is not an expert in these other areas, thanks the speaker for the helpful information but then asks: "Do I have to warn all of my non-citizen clients about the potential immigration consequences of any guilty plea? What about housing consequences? What happens if I don't warn them?" The speaker pauses, and then responds as follows: "Well, of course you should warn non-citizen clients about possible deportation and of course you should warn clients in (or with families in) public housing that certain convictions will jeopardize that But you should also know that under the current constitutional law of advisement, you might be safer remaining silent, because if you attempt to warn your client and you turn out to be wrong about that particular consequence, you may later be on the receiving end of an ineffective-assistance-of-counsel ruling. There might be other repercussions, such as a malpractice claim if you give erroneous advice. But if you stay silent, you are pretty safe." Under current Kentucky law, a speaker in that state might say: "You can go ahead and say whatever you want because even advice that's wrong won't be ineffective. Your state criminal-procedure rules probably require the judge to warn the client about immigration consequences, but they don't say anything about housing, and in any case, that's the judge and not you. You should know that there are some professional standards that recommend warnings on various consequences, but not all of them, and in any case, these are not binding on you."
317. See People v. Ensor, 149 N. E. 737, 738-39 (Ill. 1925) (recognizing rule mat whether defendant can withdraw guilty plea is discretionary with the trial court with some exceptions, including "[w]here it appears that a plea of guilty was entered through a misapprehension of the facts or the law") ;
318. People v. Bonheim, 138 N. E. 627, 628 (Ill. 1923) (examining Bonheim's claim that he was misled into believing mat a guilty plea would lead to a sentence of probation and noting that "where it appears that the plea of guilty was entered through a misapprehension of the facts or the law, or in consequence of misrepresentation by his counsel or the state's attorney... the court should permit the withdrawal of the plea of guilty").
319. United States v. Rumery, 698 F.2d 764, 766 (5th Cir. 1983).
320. Id. (finding ineffective assistance of counsel where "[c]ounsel erroneously advised defendant that he was charged with three separate counts and could receive a prison term of thirty years", and stating that "[a]ppellant's guilty plea, based as it was upon the erroneous expectation that it reduced his maximum potential sentence from thirty years to five years, was not knowingly and intelligently made").
321. Commonwealth v. Padilla, 253 S. W.3d 482, 485 (Ky. 2008) (Cunningham, J., dissenting)
322. cert. granted, 129 S. Ct. 1317 (2009).
323. See supra note 154 (discussing the Fourth Circuit's often-cited definition)
324. It is a potential violation because of the prejudice requirement for ineffectiveness claims. See supra note 21 (describing prejudice-prong test).
325. See infra notes 211-14, 246 and accompanying text (discussing Strickland's insistence on review of the particular facts of each claim of ineffectiveness).
326. Padilla, 253 S. W.3d 482.
327. Id. at 483.
328. Id. (citing Commonwealth v. Fuartado, 170 S. W.3d 384, 386 (Ky. 2005)).
329. Id. at 485.
330. See supra note 11 and accompanying text (discussing how the U. S. Supreme Court has granted certiorari in Padilla). Another such case was United States v. Parrino, where the defense lawyer, a former Commissioner of Immigration, signed an affidavit admitting that he gave Parrino erroneous advice about deportation. United States v. Parrino, 212 F.2d 919, 921 (2d Cir. 1954). Despite this, and despite noting "the terrific impact on the defendant's life and family of the collateral consequence of deportation, "
331. id. at 922, and conceding that deportation rested on the fact of the conviction, the Second Circuit deemed Parrino's deportation collateral. Id. Technically, the court held that under Federal Rule of Criminal Procedure 32 (d), governing plea withdrawals in federal court, Parrino failed to show "manifest injustice." Id. However, the Second Circuit recently found that misadvice about deportation could constitute ineffective assistance of counsel, effectively overruling Parrino.
332. See United States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002) ("[A]n affirmative misrepresentation by counsel as to the deportation consequences of a guilty plea is today objectively unreasonable."). Kentucky courts have begun to cite the Padilla decision in denying claims involving misadvice.
333. *2-3 (Ky. Ct. App. June 12, 2009) (discussing Padilla in denying Cowherd's claim that his counsel misadvised him about state law that required Cowherd to serve eighty-five percent of his sentence before becoming eligible for parole, despite the fact that counsel testified at an evidentiary hearing that had he known the law, "he strongly believed he would not have advised Cowherd to enter his plea").
334. Commonwealth v. Fuartado, 170 S. W.3d 384, 386 (Ky. 2005).
335. Id.
336. See Lassiter v. Dep't of Soc. Services, 452 U. S. 18, 25-27 (1981) (noting "the presumption that mere is a right to appointed counsel only where the indigent, if he is unsuccessful, may lose his personal freedom").
337. See Patterson v. LeMaster, 21 P.3d 1032, 1036 (N. M. 2001) ("Effective assistance of counsel is necessary during plea negotiations because the most important decision for a defendant in a criminal case is generally whether to contest a charge or enter into a plea agreement").
338. Strickland v. Washington, 466 U. S. 668, 689 (1984) ("[T]he purpose of the effective assistance guarantee of the Sixth Amendment is... to ensure that criminal defendants receive a fair trial.") ; see also Hill v. Lockhart, 474 U. S. 52, 56-57 (1985) (stating that the right to counsel applies in the context of guilty pleas).
339. Strickland, 466 U. S. at 688.
340. Id.; see also supra notes 172-74 and accompanying text (explaining how courts rely on professional standards).
341. Commonwealth v. Fuartado, 170 S. W.3d 384, 386 (Ky. 2005).
342. Id.
343. See Brady v. United States, 397 U. S. 742, 748 n. 6 (1970) (noting "[t]he importance of assuring that a defendant does not plead guilty except with a full understanding of the charges against him and the possible consequences of his plea") ;
344. see also Peter Westen & David Westin, A Constitutional Law of Remedies for Broken Plea Bargains, 66 CAL. L. REV. 471, 504-05 (1978) (explaining the requirement that the defendant be informed of possible sentence before pleading guilty "does not help him in assessing his own guilt or innocence", but rather can be explained by "the defendant's interest in being given the information he needs in order to choose what is 'best for himself").
345. Fuartado, 170 S. W.3d at 386.
346. Brady, 397 U. S. 742, at 754. For a critique of the doctrinal origins of "direct consequences" language in Brady
347. see Roberts, supra note 15, at 684-89.
348. Brady, 397 U. S. at 754.
349. Hill v. Lockhart, 474 U. S. 52, 57-60 (1985).
350. Robert MA. Johnson, Message from the President, PROSECUTOR, May-June 2001, at 5, 5.
351. See, e.g., Smyth, supra note 156, at 494-95. Smyth states: [P]rosecutors and judges respond best to consequences that offend their basic sense of fairness-consequences that are absurd or disproportionate or that affect innocent family members. Four major categories of hidden punishments provide the most leverage: (1) housing (loss of public housing or Section 8 housing) ; (2) employment (loss of a job or employment license, particularly for the primary breadwinner) ; (3) student loans; and (4) immigration. Id.
352. People v. Soriano, 240 Cal. Rptr. 328, 335 (Cal. Ct. App. 1987) (alteration in original) (citing an amicus brief from the San Francisco Public Defender).
353. See Chin & Holmes, supra note 49, at 722-23 (describing various ways in which judges can and do take collateral consequences into account in sentencing determinations).
354. See note 12 and accompanying text (quoting Padilla Petition for Certiorari). While one would certainly hope that such a situation would not arise, the Padilla approach does allow for it. The idea that the Constitution would allow a guilty plea under such circumstances (even if such behavior would potentially allow for a malpractice claim or bar association disciplinary action against counsel) is unacceptable.
355. State v. Paredez, 101 P.3d 799, 805 (N. M. 2004).
356. Id. at 805.
357. Id. at 804.
358. Id. (quoting United States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002)).
359. Id.
360. Paredez, 101 P.3d at 805 (emphases added). Since the case was on direct appeal and there was not yet a fully-developed record of defense counsel's alleged ineffectiveness, the Court remanded the case for an evidentiary hearing at which Paredez could prove what the high court characterized as "a distinct possibility that [his] attorney failed to adequately inform him of the immigration consequences of his plea, and [that] if [he] had been properly advised, he would not have pleaded guilty."
361. Id. at 806.
362. The Supreme Court has recognized a limited class of ineffective- assistance cases where it is appropriate to presume prejudice under Strickland's second prong. Florida v. Nixon, 543 U. S. 175, 177 (2004) (noting Cronic's per se prejudice standard is "reserved for situations in which counsel has entirely failed to function as the client's advocate", and finding that defense counsel's strategy of conceding defendant's guilt, without the defendant's consent, did not constitute per se prejudice) ;
363. see, e.g., United States v. Cronic, 466 U. S. 648, 657-62 (1984) (noting the prejudice prong is presumed where counsel's actions-or lack thereof-constitutes an actual breakdown of the adversarial process at trial) ;
364. Smith v. Wainwright, 777 F.2d 609, 616-17 (11th Cir. 1985) (finding a presumption of prejudice where defendant's counsel failed to move to suppress defendant's confession). However, the Supreme Court has never applied such a per se rule to the attorney-competence prong. Rather, it has insisted on a case-by-case analysis under the particular circumstances of the case.
365. See Strickland v. Washington, 466 U. S. 668, 696 (1984).
366. Strickland, 466 U. S. at 688.
367. Id. at 689-90.
368. Id. (quotation marks omitted).
369. Pareda, 101 P.3d at 804.
370. Id. at 805.
371. Id. at 801.
372. In Roberti v. State, the court held that "[a]ffirmative misadvice about even a collateral consequence of a plea constitutes ineffective assistance of counsel and provides a basis on which to withdraw the plea." Roberti v. State, 782 So. 2d 919, 920 (Fla. Dist. Ct. App. 2001). It then remanded for an evidentiary hearing at which Roberti could demonstrate that there was misadvice and that he would not have pleaded no contest (tantamount to a guilty plea) with proper advice. It thus appears that all Roberti had to show was the fact of misadvice, and not the further showing that misadvice in his particular case demonstrated unreasonable attorney behavior. On remand, however, the court denied Roberti's motion to withdraw his guilty plea.
373. See supra note 66 (stating the same).
374. See supra note 101 (discussing how proving prejudice is a formidable barrier for individuals claiming ineffective assistance of counsel).
375. See, e.g., United States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002) (noting that defendant's behavior and her nine-year residency in the United States evidenced her clear desire to avoid deportation, and that "the facts of the current case demonstrate [prejudice] beyond peradventure").
376. See State v. Edwards, 157 P.3d 56 (N. M. Ct. App. 2007).
377. Id. at 63 (alteration in original)
378. (quoting State v. Druktenis, 86 P.3d 1050, 1061 (N. M. Ct. App. 2004)).
379. Id. at 64
380. (quoting Druktenis, 86 P.3d at 1061).
381. See, e.g., Lopez v. Gonzales, 549 U. S. 47, 52-53 (2006). The Lopez court stated: The [relevant immigration law] makes Lopez guilty of an aggravated felony if he has been convicted of "illicit trafficking in a controlled substance... including", but not limited to, "a drug trafficking crime (as defined in [federal law])." Lopez's state conviction was for helping someone else possess cocaine in South Dakota, which state law treated as the equivalent of possessing the drug, a state felony. Mere possession is not, however, a felony under the federal [Controlled Substances Act], although possessing more than what one person would have for himself will support conviction for the federal felony of possession with intent to distribute. Id. (citations omitted).
382. Strickland v. Washington, 466 U. S. 668, 688 (1984) ("In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.").
383. See supra notes 20-21 and accompanying text (describing the misrepresentation exception).
384. Another possibility is that a person pleads guilty without either defense counsel or the court telling him anything about the consequence, yet does so because he wants the plea bargain despite any collateral consequences. Here, however, the defendant would not be able to make out the prejudice prong of the two-part ineffective-assistance test. Thus, this defendant would not be able to later withdraw the plea.
385. MINN. R. CRIM. P. 15.01 (10) (d).
386. MINN STAT. §253B.185 (2008) ;
387. see also id. § 253B.02 (18b) - (18c) (defining, respectively, "sexually psychopathic personality" and "sexually dangerous person").
388. See id. § 253B.02 (18a) (defining "secure treatment facility").
389. See, e.g., INS v. St Cyr, 533 U. S. 289, 322 (2001) ("[A]lien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions." (footnote omitted)).
390. See Cheek v. United States, 498 U. S. 192, 199 (1991) ("The general rule that ignorance of the law or a mistake of law is no defense to criminal prosecution is deeply rooted in the American legal system.").
391. See United States v. Rumery, 698 F.2d 764, 766 (5th Cir. 1983) (vacating defendant's conviction after he pleaded guilty when his lawyer advised him that he faced a maximum of thirty years in prison when in fact the maximum penalty was five years).
392. See Anthony Lewis, Abroad at Home;' This Has Got Me in Some Kind of Whirlwind,' N. Y. TIMES (N. Y. ed.), Jan. 8, 2000, at A13 (describing Mary Anne Gehris's surprise upon learning that she faced deportation for an old misdemeanor conviction) ;
393. see also supra note 245 and accompanying text (describing the complex nature of determination when federal deportation law applies to state criminal conviction).
394. See, e.g., Doe v. Weld, 954 F. Supp. 425, 434 (D. Mass. 1996) (rejecting a plaintiff's argument that, among other things, sex-offender "registration is punitive when it is required of juveniles who were promised confidentiality and who were not told at the time of the plea of the possibility mat their records could be used by enforcement officials in the future"). These assumptions are exacerbated in the context of "no contest" and Alford pleas. In the former, the individual is convicted of the charge and sentenced accordingly without having to admit guilt to the underlying offense.
395. See, e.g., TEX. CODE CRIM. PROC. ANN. art. 27.02 (5) (Vernon 2006) (noting how the legal effect of a plea of nolo contendere "shall be the same as that of a plea of guilty, except that such plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based"). In the latter, the person may plead guilty while claiming innocence, so long as there is a strong factual basis for the allegations beneath the conviction.
396. See North Carolina v. Alford, 400 U. S. 25, 37-38 (1970) (holding that because the evidence "substantially negated" the defendant's claim of innocence, it was not a constitutional error for the judge to accept the guilty plea). In both categories of pleas, the defendant is even more likely to assume that the resulting conviction would not lead to collateral consequences, since all parties involved in the plea have agreed that he does not have to say that he committed the crime but instead only state that he is pleading guilty. Yet these pleas can lead to any number of collateral consequences.
397. See, e.g., FLA. STAT. § 394.912 (2) (2008) (including nolo contendere pleas in Florida's Involuntary Civil Commitment of Sexually Violent Predators Act's definition of "convicted of a sexually violent offense").
398. For example, Ronald Roberti was allowed to seek withdrawal of his no-contest plea only because his lawyer misrepresented the Florida civilcommitment-act consequence to him. Roberti v. State, 782 So. 2d 919, 920 (Fla. Dist. Ct App. 2001). If defense counsel had remained silent about commitment, then Roberti would have been stuck with his plea, despite the fact that he might quite reasonably have assumed that a nocontest plea would mean that the state could not use the plea against him in other circumstances. That assumption might have been even more likely in a case where the defendant entered an Alford plea, and affirmatively insisted upon his innocence while making the strategic decision to plead guilty.
399. See Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social Experiment, 73 U. CHI. L. REV. 271, 272 (2006) (describing the rise in misdemeanor and low-level offense prosecutions in several major urban areas but questioning the efficacy of such policies).
400. See Lewis, supra note 255 (describing the case of a thirty-four-year-old Georgia woman living in the United States since she arrived from Germany as a child, whose husband and severely disabled son are both American citizens, facing deportation for a hair-pulling incident for which she
401. see also supra note 2 (defining "lawful permanent resident").
402. See GIDEON'S BROKEN PROMISE, supra note 94, at 16 (noting the problem of "meet 'em and plead 'em" lawyers for indigent defendants).
403. See COMM'N ON THE FUTURE OF INDIGENT DEF. SERVS., FINAL REPORT TO THE CHIEF JUDGE OF THE STATE OF NEW YORK 21 (2006), available at http://www.courts.state.ny.us/ip/ indigentdefense-commission/IndigentDefenseCommission-report06.pdf (noting, in the section reviewing New York State's town and village courts, that "the Commission was alarmed, not only by the vast disparity in these courts with respect to when the assignment of counsel is made, but also by the numerous outright denials of the right to assigned counsel itself).
404. *2 (N. Y. Crim. Ct. Feb. 5, 2007) (rejecting Clark's motion to vacate his two misdemeanor drug convictions following guilty pleas, one taken the day after arrest and the other taken a month after arrest).
405. See Francis, supra note 102, at 726 (noting that failure to require counsel specifically to advise the defendant of the immigration consequences of pleading guilty would "place[] an affirmative duty to discern complex legal issues on a class of clients least able to handle that duty").
406. This should not excuse an attorney's ignorance of collateral consequences. There are a number of defender offices that conduct continuing training on various collateral consequences. See, e.g., GA. PUB. DEFENDER STANDARDS, supra note 114. However, many indigent defendants are represented not by an established public defender's office, but instead by private attorneys paid by the government at a fixed hourly rate to handle such cases (sometimes with a cap on total compensation).
407. See Adam Liptak, Public Defenders Get Better Marks on Salary, N. Y. TIMES, July 14, 2007, at A1 ("[M]ost indigent defendants are not represented by staff public defenders at the [state] trial level."). These attorneys do not work in one office with centralized training; indeed, they often have no mandated training at all beyond any continuing-legaleducation requirements imposed by their respective licensing body.
408. See, e.g., N. Y. COMP. CODES R. & REGS. tit. 22, §§ 1500.1-.26 (2007) (codifying New York's continuing-legal-education requirements). This is only to say that defense counsel are often not required to learn about collateral consequences. It does not mean that they cannot learn about them through local trainings or the many electronically available manuals on the topic.
409. See generally LEGAL ACTION CTR., AFTER PRISON: ROADBLOCKS TO REENTRY (2004), available at http://www.lac.org/roadblocks-to-reentry/upload/lacreport/ LAC-PrintReport.pdf;
410. Reentry Net, Find Out About Collateral Consequences of Criminal Charges, Proceedings, and Convictions in Your State, http://www.reentry.net/library/ attachmenLl56819 (last visited Nov. 11, 2009).
411. Under the current collateral-consequences rule and affirmative-misadvice exception approach in most jurisdictions, it is not clear whether a defendant must have affirmatively inquired about the collateral consequence prior to receiving erroneous information to come under the exception. The cases analyzing misadvice often do not specify whether or not the defendant made such inquiries. See generally Goodall v. United States, 759 A.2d 1077 (D. C. Cir. 2000).
412. See supra note 108 (citing studies finding high percentages of defendants in both the state and federal criminal justice systems who qualify as indigent).
413. Immigration poses a somewhat unique circumstance, where many people do hire someone to help them through the complex process. But often that person is not an attorney, and, although some may provide quality advice and assistance, scams and fraud abound in this industry. See Gary Rivlin, Dollars and Dreams: Immigrants as Prey, N. Y. TIMES, June 11, 2006, available at http://www.nytimes.com/2006/06/11/business/yourmoney/ 11migrate.html?page wanted=1&-r=1.
414. See, e.g., Lassiter v. Dep't of Soc. Servs., 452 U. S. 18, 32-33 (1981) (balancing presumption against any right to counsel in cases where the individual does not face loss of personal freedom against the Court's three-element due-process test, and finding no right to counsel in parental-termination case under particular facts presented).
415. See generally LEGAL SERVS. CORP., DOCUMENTING THE JUSTICE GAP IN AMERICA (2d ed. 2007), available at http://www.lsc.gov/justicegap. pdf.
416. It is important to note that rejecting a plea-bargain offer does not necessarily mean there will be a trial. Defense counsel may convey the rejection to the prosecution only to receive a better offer, or at least an offer that allows the defendant to avoid the undesirable consequence. See Michael Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated Individuals, 86 B. U. L. REV. 623 (2006). Incorporating the collateral consequences and reentry components into [plea] negotiations would allow defense attorneys to more accurately lay out both the immediate and long-term effects of the particular disposition. Conveying this information to prosecutors and courts would enable both entities to more fully understand and appreciate these effects and would encourage them to calibrate their positions accordingly.
417. Id. at 685.
418. State v. Paredez, 101 P.3d 799, 804 (N. M. 2004).
419. Paredez, 101 P.3d at 804-05 (emphasis added).
420. See supra note 47 (listing the New Mexico, Colorado, Ohio, and California courts that have recognized the effect).
421. For the purposes of this section, "innocent" means: (1) totally innocent of the charges (for example, there was a mistaken identification so that the wrong person was charged), or (2) innocent of the crime charged or top counts even if guilty of some other, lower-level, crime (for example, guilty of drug possession but not of sale). For a definition of "claims of innocence", see Brandon L. Garrett, Claiming Innocence, 92 MINN. L. REV. 1629, 1633 (2008) (dividing "innocence claims into three basic categories: (1) substantial claims; (2) outcome-determinative claims; and (3) inconclusive claims" and noting that "[t]hese categories reflect a spectrum based on the varying degrees to which the new evidence of innocence... may undermine the evidence that was introduced at the criminal trial").
422. United States v. Russell, 686 F.2d 35, 41 (D. C. Cir. 1982).
423. See Blackledge v. Allison, 431 U. S. 63, 71 (1978) ("Whatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system.").
424. See generally MICHAEL MCCONVILLE & CHESTER L. MIRSKY, JURY TRIALS AND PLEA BARGAINING: A TRUE HISTORY (2005) (chronicling the American criminal justice system's transition from one of primarily jury trials to one of primarily plea bargaining). Plea bargaining, however, is not without its critics.
425. See, e.g., Stephen J. Schulhofer, Plea Bargaining as Disaster, 101 YALE L. J. 1979, 1979-80 (1992) ("[P]lea bargaining seriously impairs the public interest in effective punishment of crime and in accurate separation of the guilty from the innocent").
426. Samuel R. Gross, Convicting the Innocent, 4 ANN. REV. L. & SOC. SCI., 173, 181 (Dec. 2008) ;
427. Chris Conway, The DNA 200, N. Y. TIMES, May 20, 2007, available at http://www.nytimes. com/2007/05/20/weekinreview/20conway. html?scp=1&sq=DNA+200++Chris+Conway&st=nyt (citing the Innocence Project finding that four percent of the 200 DNA exonerations between 1989 and 2007 involved criminal defendants who pleaded guilty).
428. See, e.g., Richard A. Leo, The Problem of False Confession in America, CHAMPION, Dec. 2007, at 30, 31 ("[F]alse confessions are... not an anomaly but a systemic feature of American criminal justice.") ;
429. Jodi Wilgoren, Confession Had His Signature; DNA Did Not, N. Y. TIMES, Aug. 26, 2002, at A1 (describing a Michigan case where a man signed a confession yet DNA proved him innocent). False confessions continue to be a leading cause of miscarriages of justice in America. In six separate studies of documented false confessions, Professor Richard Leo found that "police-induced false confessions continue to occur regularly and 'are of sufficient magnitude to demand attention. "
430. RICHARD A. LEO, POUCE INTERROGATION AND AMERICAN JUSTICE 244 (2008). One of the studies found that, of the 200 DNA exonerations documented by the Innocence Project between 1989 and 2007, "[a]t least sixteen percent of these wrongful convictions were caused by false confession. "
431. Id. However, only four percent of those convictions involved actual guilty pleas, meaning the others involved only an earlier, pre-plea confession followed by conviction after trial. Conway, supra note 276.
432. Brady v. United States, 397 U. S. 742, 757-58 (10th Cir. 1970). For an extensive exploration of the various systemic incentives that lead innocent defendants to plead guilty and the roles that prosecutors, defense counsel, and judges play in securing such erroneous convictions
433. see F. Andrew Hessick III & Reshma Saujani, Plea Bargaining and Convicting the Innocent: The Role of the Prosecutor, the Defense Counsel, and the Judge, 16 BYU J. PUB. L. 189, 191-93 (2002).
434. See also Michael O. Finkelstein, A Statistical Analysis of Guilty Plea Practices in the Federal Courts, 89 HARV. L. REv. 293, 309 (1975) ("[P]ressures to plead guilty have been used to secure convictions that could not otherwise be obtained.").
435. See North Carolina v. Alford, 400 U. S. 25, 37 (1970) (holding that it does not violate due process when trial judges accept a guilty plea from a defendant who continues to insist upon his innocence, so long as there is a factual basis for the plea). Anyone who has spent significant time practicing in the criminal justice system is aware that courts often allow defendants to plead guilty to a charge just seconds after protesting their innocence or "messing up" their plea allocution, often with a short "consultation" with defense counsel to clear up the "confusion". For example, consider the following excerpt from Alford: After giving his version of the events of the night of the murder, Alford stated: "I pleaded guilty on second degree murder because they said there is too much evidence, but I ain't shot no man, but I take the fault for the other man. We never had an argument in our life and I just pleaded guilty because they said if I didn't they would gas me for it, and that is all." In response to questions from his attorney, Alford affirmed that he had consulted several times with his attorney and with members of his family and had been informed of his rights if he chose to plead not guilty. Alford then reaffirmed his decision to plead guilty to second-degree murder: "Q [by Alford's attorney]. And you authorized me to tender a plea of guilty to second degree murder before the court? "A. Yes, sir. "Q. And in doing that, that you have again affirmed your decision on that point? "A. Well, I'm still pleading that you all got me to plead guilty. I plead the other way, circumstantial evidence; that the jury will prosecute me on-on the second. You told me to plead guilty, right. I don't-I'm not guilty but I plead guilty."
436. Id. at 28 n. 2;
437. see also John L. Barkai, Accuracy Inquiries for All Felony and Misdemeanor Pleas: Voluntary Pleas But Innocent Defendants?, 126 U. PA. L. REV. 88, 95 (1977) (noting that one purpose of the requirement that the court establish a factual basis for a guilty plea before accepting it is to "protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge"). Despite this constitutional stamp of approval, many Jurisdictions remain uncomfortable with the idea of such pleas, such that as of 2002 only thirteen states allowed Alford pleas. Hessick & Saujani, supra note 278, at 198. Hessick and Saujani stated: Since the Alford decision, some courts have remained averse to the idea. The Third, Fourth, Fifth, Sixth, Seventh, Ninth, and Tenth Circuits have upheld the Alford plea standard; only thirteen states have applied the standard. The U. S. Attorney's Office permits Alford pleas only with permission from a higher authority, and the military tribunals ban it outright. Id. (citations omitted).
438. Innocence Project, Facts on Post-Conviction DNA Exonerations, http://www.innocenceproject.org/Content/351.php (last visited Nov. 11, 2009).
439. See Conway, supra note 276. There are well-known examples of false confessions, with the recent spate of DNA exonerations starkly illustrating the phenomenon.
440. See, e.g., Tina Kelley, Charges Dropped for Man Imprisoned 19 Years, N. Y. TIMES, July 10, 2007, at B3 (describing how DNA refuted the signed confession of Byron Halsey, a man with a sixth-grade education and severe learning disabilities, admitting to killing his two children) ;
441. Bruce Tomaso & David McLemore, Bush Spares Lucas from Death Penalty; Governor Commutes Sentence to Life, Cites Doubts Over Guilt, DALLAS MORNING NEWS, June 27, 1998, at 1A (describing then-Governor of Texas George W. Bush's commutation-despite Henry Lee Lucas's detailed videotaped confession, which the prosecution played for the jury that sentenced him to death-after post-conviction evidence showed Lucas was 1000 miles away from murder scene).
442. Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 WIS. L. REV. 291, 291 (noting how "DNA evidence exists in only a small minority of all cases-and is preserved and available for post-conviction testing in an even smaller proportion of cases", and how "innocence is so very difficult to prove postconviction without DNA") ;
443. see also Daniel S. Medwed, Innocentrism, 2008 U. ILL. L. REV. 1549, 1559 ("It is fair to say that the proven cases of actual innocence are just the tip of the innocence iceberg, so to speak." (footnote omitted)).
444. The value of exonerating the innocent is high in our criminal justice system, since it both avoids miscarriages of justice and can lead to the conviction of the actual guilty person-something that will not happen if an innocent person ends the case by pleading guilty. Reinvestigation of a case will likely only happen if there is strong, affirmative evidence of the defendant's innocence, and even then there may be great resistance.
445. See, e.g., Daniel Medwed, The Zeal Deal Prosecutorial Resistance to Post-Conviction Claims of Innocence, 84 B. U. L. REV. 125, 138-41 (2004) (discussing the "conviction psychology" and identifying the institutional atmosphere and cognitive biases that prosecutors face in dealing with post-conviction innocence claims) ;
446. Amaris Elliot-Engel, DNA to Enter Murder Case, CITIZEN (Auburn, N. Y.), Apr. 21, 2006, available at http://www.auburnpub.com/ articles/2006/04/21/news/local-news/news 03.txt (describing how lead prosecutor, when faced with possibility of new DNA evidence that could exonerate Roy Brown, stated that other evidence in the case against Brown still held up and noted how "'[t]he absence of someone's DNA does not automatically exonerate someone'") ;
447. Ctr. on Wrongful Conviction, Northwestern Univ. Sch. of Law, Kirk Bloodsworth, http://www.law.northwestern. edu/wrongfulconvictions/exonerations/ mdBloodsworthSummar y.html (last visited Nov. 11, 2009) (describing how it took authorities a decade after Bloodsworth's release from prison to run DNA evidence that had exonerated him through a national database, and how when this was finally done, it linked a man who had been in same prison as Bloodsworth to the crime).
448. See generally Hessick & Saujani, supra note 278, at 197-206.
449. Schulhofer, supra note 275, at 1980. The equation is of course more complex than it first appears. For example, "[s]cholars have posited that the innocent defendant is inherently more risk averse than the criminal because a criminal was willing to risk breaking the law in the first place." Hessick & Saujani, supra note 278, at 201 (citing various examples). In addition, there are many other factors that might play a role in the decision-making process for a particular defendant, including pressure from family members or friends, unwillingness to serve any time in prison whatever the risk of loss at trial, or mental-health issues that may inhibit rational judgment Still, a cost-benefit analysis of a plea offer is an integral part of the dialogue between defendant and counsel and is a useful starting point for any discussion about plea bargaining.
450. So, of course, do the less tangible collateral consequences, including days spent in court continuing to litigate the case (and thus days of work lost, or childcare to cover).
451. See generally MALCOLM FEELEY, THE PROCESS IS THE PUNISHMENT: HANDLING GASES IN A LOWER CRIMINAL COURT 239-40 (1979) (finding that a sample study of defendants indicated that the total income lost due to court appearances was five times the amount collected in fines for those cases) ;
452. see also K. Babe Howell, Broken Lives from Broken Windows: The Hidden Costs of Aggressive Misdemeanor Polticing, 33 N. Y. U. REV. L. & SOC. CHANGE 271, 292 (2009) ("Many of these costs are externalized, born by individual arrestees, their families, their communities, and the larger community of taxpayers to the extent that arrests and criminal records lead to further arrests, incarceration, or un (der) employment Other costs are borne directly by the system.") ;
453. Pager, supra note 26 (discussing causal relationship between a criminal record and employment outcomes).
454. Of course going to trial is not a sure protection against conviction of the innocent. See Gross, supra note 276, at 181 ("[One 2005 study] found 20 individual exonerations in which the underlying convictions were based on guilty pleas, or about 6% of the 340 cases they analyzed. This is a startlingly low proportion in a system in which 95% of felony convictions are obtained by guilty plea.").
455. There is a fourth scenario that, although perhaps less likely than the others, is nevertheless worthy of consideration. Here, counsel informs his or her client that a conviction after trial on the crimes charged will lead to a collateral consequence and that a guilty plea to reduced charges will avoid the consequence. Counsel was wrong, however, and in fact, neither conviction would lead to the consequence. Silence in this scenario, if accompanied by the defendant's assumption that there was no collateral consequence, would actually be more advantageous for the defendant trying to weigh the true costs and benefits of a plea versus a trial, whereas misadvice would put a heavy finger on the plea scale.
456. See generally FEELEY, supra note 286, at 186-87 (noting how many defendants charged with minor crimes choose to plead guilty once they realize "how much it will cost them to pursue their claim of innocence", especially in light of the fact that many who plead guilty will not receive a jail sentence). Of course, even in some serious cases, the collateral consequence outweighs the direct penalty. Thus, a defendant may well consider involuntary commitment or deportation harsher man a number of years in prison.
457. Chin & Holmes, supra note 49, at 740 (citing various articles arguing that innocent defendants frequently plead guilty).
458. Ross v. Moffitt, 417 U. S. 600, 610 (1974) (stating that the Due Process Clause does not guarantee the right to counsel for discretionary appeals).
459. See, e.g., ABA, Death Penalty Representation Project, http://www.abanet.org/deathpenalty/(last visited Nov. 11, 2009) ("Our goals are to raise awareness about the lack of representation available to death row inmates, to address this urgent need by recruiting competent volunteer attorneys and to offer these volunteers training and assistance.") ;
460. see also Celestine Richards McConville, The Right to Effective Assistance of Capital Post Conviction Counsel: Constitutional Implications of Statutory Grants of Capital Counsel, 2003 WIS. L. REV. 31, 63-65 (noting how, despite the fact that federal constitutional law does not guarantee counsel beyond the first appeal even in capital cases, not all states with a death penalty provide a mandatory right to counsel for capital defendants for post-conviction proceedings).
461. Although, even if it did, that would be a weak argument against full information. If society supports numerous, harsh collateral consequences, then they should not be a secret. Indeed, the rule is not that judges and lawyers cannot inform defendants, but only that they need not inform them, at least not under constitutional norms.
462. See supra text accompanying note 25 (discussing the employment consequences of a criminal sanction).
463. As the National Conference of Commissioners on Uniform State Laws commented: [B]ecause the [collateral] sanctions typically apply to a conviction by plea or jury verdict, pleading not guilty is not a means for a guilty person to avoid collateral sanctions. It is reasonable to assume that the largest group of people who will plead not guilty when they otherwise would have pleaded guilty will be those who have a defensible case, but planned to plead guilty under the misapprehension that a criminal conviction would have little effect.
464. See UNIF. ACT ON COLLATERAL CONSEQUENCES OF CONVICTIONS § 5 cmt. (Draft 2008), available at http://www.law.upenn. edu/bll/archives/ulc/ucsada/2008- amdraft.pdf (noting but disagreeing with the argument that "[o]ne possible objection to advisement about applicable collateral sanctions is that if defendants actually know about the dozens or hundreds of negative legal effects of a criminal conviction, many will refuse to plead guilty").
465. But see Julian A. Cook, III, All Aboard: The Supreme Court, Guilty Pleas, and the Railroading of Criminal Defendants, 75 U. COLO. L. REV. 863, 899 (2004) ("[D]efendant ignorance about the realities of the plea process is necessary if the current plea structure is to maintain its vibrancy, for if defendants truly comprehended the process and its attendant consequences, the efficiency of the guilty plea system would likely be compromised.").
466. See supra notes 252-56 and accompanying text (pointing out why ignorance-of-law concept does not apply to information about collateral consequences).
467. See generally PETERSIUA, supra note 24.
468. See Dep't of Hous. & Urban Dev. v. Rucker, 535 U. S. 125, 128 (2002) (upholding the Department of Housing and Urban Development's authority to evict tenants based on the drug activity of any visitor, "regardless of whether the tenant knew, or had reason to know, of that activity").
469. See, e.g., Lewis, supra note 255 (illustrating the injustice of losing one's home or ability to live in what has become one's home country because of a minor conviction, and thus also illustrating the unfairness of immigration and housing laws).
470. Francis, supra note 102, at 726.