Why Padilla Doesn't Matter (Much)


The U.S. Supreme Court’s decision in Padilla v. Kentucky heralds a formal breakthrough in the representation provided to immigrants charged with crimes that trigger deportation, and the decision may signal as well the Court’s recognition of plea bargaining’s dominant role in criminal adjudication. There are good reasons to worry, however, that Padilla’s practical impact will be modest, and for many noncitizen criminal defendants, including probably Jose Padilla himself, nonexistent. The Padilla Court suggested that it expected attorneys to use their newly required awareness of law triggering deportation upon a criminal conviction to inform plea bargain negotiation and even change criminal or immigration law outcomes through creative bargains. But the problem for many noncitizen defendants like Mr. Padilla is not simply—and not primarily—their lawyers’ unfamiliarity with immigration law, for which Padilla’s mandate is a remedy. It is, in many cases, the content of the substantive criminal law, of sentencing law, and of limited procedural possibilities for avoiding immigration law’s consequences. None of that law changes with Padilla. Moreover, the widespread, enduring inadequacies of indigent criminal defense in American courts are unaffected by Padilla. As a result, defense lawyers’ abilities to negotiate favorable immigration outcomes for clients are diminished even when the substantive law provides a possibility for doing so.

About the Author

O.M. Vicars Professor of Law, University of Virginia.

By uclalaw