The Supreme Court recently released its opinion in Chaidez v. United States. This case was about whether or not the Sixth Amendment guarantees of effective assistance of counsel (applied to warnings about deportation consequences of guilty pleas by the earlier case Padilla v. Kentucky,) could be asserted retroactively. In other words did Padilla, create a "new rule" which could only be used in cases where a plea was entered after the Padilla case (March 31, 2010) or was it simply applying an old rule to a new setting - deportation? If the latter, anyone who had entered a guilty plea (without being advised that it would lead to being deported) could seek to withdraw the plea and attempt to renegotiate the plea or go to trial.
Well, no surprise that the court took the path that would create the least amount of additional work for the lower courts - and leave settled the old cases where persons were allowed to plead guilty to charges great and small without being advised of the looming deportation proceeding in their future. It was a pragmatic "policy making" decision but not one without a legal foundation. When read together with Padilla, however, it seems clear that the Chaidez, dissent written by Justices Sotomayor and Ginsburg falls closer to the true intent of the original Padilla opinion authored by Justice Stevens. Justice Stevens stated for the court in the Padilla case that because giving non-citizens warnings about immigration consequences of criminal convictions had been the standard of practice for at least 15 years:
It seems unlikely that our decision today will have a significant effect on those convictions already obtained as the result of plea bargains. For at [**298]least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client's plea. See, supra, at 11-13. We should, therefore, presume that counsel satisfied their obligation to render competent advice at the time their clients considered pleading guilty. Strickland, 466 U. S., at 689.
That paragraph and the one that follows it are entirely superfluous if the intent of Padilla was that it only be applied prospectively. But then Justice Stevens is retired and the person who took his spot -- Justice Kagan (who wrote the majority opinion in Chadiez) so there you go.
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