Miami Criminal Lawyer David Edelstein

November 27, 2009 By: Tony Mauro

The attention-seeking parents of the Colorado “balloon boy” must not have had their thinking caps on when they told police their son was aboard a runaway hot-air balloon. But when their misadventure got them hauled into court, they suddenly smartened up.

On the advice of counsel, Richard and Mayumi Heene worked out a plea agreement last month that had them confess to different crimes. The father is now a felon, but the mother pleaded guilty to a misdemeanor charge of false reporting. Why? Because she is a Japanese citizen. If she had pleaded guilty to a felony, a collateral consequence would have been deportation.

The Heenes were lucky, but Jose Padilla, whose case went before the U.S. Supreme Court exactly one month earlier, was not.

Padilla, a legal U.S. resident born in Honduras, pleaded guilty to an aggravated felony drug charge in Kentucky. His lawyer told him the plea would not get him deported because he had lived in the United States for decades. The advice was flat wrong, Padilla faces deportation, and now he wants his plea set aside based on the bad advice.

Both cases, as different as they are, are casting new light on a legal issue that has been simmering for years: when, whether and how defendants should be informed about the consequences of pleading or being found guilty.

Depending on the offense and jurisdiction, a guilty plea or verdict can, in addition to the penalty for the crime, make it impossible for a defendant to vote, live in public housing, become a cosmetologist, carry a gun, drive a car or receive a growing array of government benefits.

If you plead guilty to public urination or if, as a 19-year-old boy, you had a relationship with a 16-year-old girl, you can in some states be marked as a sex offender for life.

The laws of some states as well as the American Bar Association’s criminal justice standards call for lawyers or others to inform defendants accurately of these consequences.

It often does not happen — especially as Padilla learned in the area of immigration law, which may be unfamiliar territory to a harried criminal defense lawyer.

“Every day, immigrants are advised to give up their rights and plead guilty to charges that subject them to lifetime exile,” said Benita Jain, co-director of the Immigrant Defense Project.

But the problem extends well beyond the immigration context, said Richard Cassidy of Hoff Curtis Pacht Cassidy Frame & Katims in Burlington, Vt.

“We’re creating a criminal underclass that can’t fully participate in society. People who think they can plead guilty and walk out of the courthouse free may discover that there are collateral consequences that trail them around for life.”

Cassidy heads a committee of the Uniform Law Commission that has drafted a model law tackling the problem.

States that pass the law would compile the collateral consequences, develop a process for informing defendants before they enter pleas and create a mechanism for mitigating those consequences when appropriate.

The proposed law, in the works for years, will go before the ABA’s House of Delegates for endorsement in February.

If approved, it would go before state legislators.

The commission, with delegates from every state, proposes laws to foster uniformity in statutes across the country.

The proposed law is one element in the reentry movement aimed at helping the millions of Americans with some kind of criminal record get back on their feet when they’ve paid their debt to society, Cassidy said.

Margaret Love, a Washington solo practitioner who has been spotlighting the issue of collateral consequences for years, said the impact has been growing, in part because of post-9/11 background checks and the public availability of criminal records. Among her clients are some with long-ago drunken-driving or other offenses who suddenly get fired even though they’ve been exemplary citizens for years. There is often little that can be done, though in some states pleas can be made to the governor or a parole board to relieve the impact of a conviction.

“The criminal class is such an unpopular one,” said Love, who has written a 50-state guide to seeking relief from collateral consequences. “If you have a felony, you have no voice.”

The new emphasis on informing defendants about collateral consequences is not without critics.

At a 2008 Uniform Law Commission discussion of the proposed law, delegate James Bopp Jr. from Indiana said, “I do not consider it an unjust state of affairs that criminal defendants are not advised of each potential collateral sanction or disqualification.”

Bopp, who is better known for his litigation against campaign reform laws, expressed concern that if new laws create new obligations to inform defendants, then “every sentence and every guilty plea is ultimately subject to failure to disclose each one of these hundreds [of] unknowable collateral consequences.”

At the Supreme Court hearing on the Padilla case, some justices expressed similar concerns.

“The world is filled with 42 billion circumstances,” Justice Stephen Breyer said. Opening the door to requiring lawyers to give accurate advice about those circumstances “will set in motion the great legal rule machine.”

Cassidy said the model law anticipates these concerns by stating explicitly that it creates no new duty for lawyers and can’t be the grounds for invalidating a plea. Though the law does not dictate how defendants would be notified of collateral consequences, Cassidy said he could envision the judge or some government agency, not necessarily the defense lawyer, giving the defendant a “one-page document” when charged, sentenced and released. Under a federal law passed in 2007, the National Institute of Justice is compiling the collateral consequences of laws in all 50 states.

In spite of the worries voiced at oral argument in the Padilla case, Love said she was heartened by comments from some justices. Justice Samuel Alito Jr., whose father was an Italian immigrant. He told Padilla’s lawyer, Stephen Kinnaird of Paul Hastings Janofsky & Walker’s Washington office, “Your argument has an appeal because removal is such a harsh consequence, particularly for someone like your client who had been in the United States for a long time.”

Love, who attended the argument, said, “It’s hard to believe the court will agree with the state of Kentucky that a lawyer doesn’t need to advise his client about things that are so important.”

The U.S. solicitor general took something of a middle ground, arguing a lawyer is not obliged to tell a defendant about immigration consequences of a guilty plea, but if he or she does give advice on that point, it must be accurate. If the high court even went as far as to agree with the solicitor general, Love said it would be significant.

“I suspect that the Padilla case is going to jump-start this discussion,” he said.

Tony Mauro is U.S. Supreme Court correspondent for ALM, parent of the Daily Business Review.