The Sixth Amendment right to assistance of counsel has evolved since its inception. Originally, the right only meant that criminal defendants in federal cases were entitled to assistance of counsel of their choosing. The right was eventually applied to state criminal proceedings, and later interpreted to mean that criminal defendants had a right to effective assistance of counsel. This right is imperative in protecting a defendant's fundamental right to a fair trial. In 1984, the Supreme Court laid out a two-part test to determine whether a defendant's Sixth Amendment rights were violated by ineffective assistance of counsel. This test, known as the Strickland test, was used exclusively to analyze ineffective assistance of counsel claims until 2010. Under the Strickland test, a defendant must show: (1) ineffective counsel whose conduct fell below an objective standard of reasonableness and (2) that counsel's deficient performance resulted in prejudice to the defense.
Courts have limited criminal defendants' right to effective assistance of counsel through use of the collateral consequences doctrine. This doctrine distinguishes between direct consequences of a criminal conviction, which include penal sanctions, and collateral consequences, which include civil sanctions. Direct consequences give rise to ineffective assistance of counsel claims because a defendant's liberty is at stake. Collateral consequences are indirect consequences of a criminal conviction, and therefore do not give rise to ineffective assistance of counsel claims. Deportation has long been understood to be a collateral consequence. Based on this classification, until 2010, non-citizens were unable to bring ineffective assistance of counsel claims when their attorneys did not inform them that deportation was a risk of accepting a plea bargain.
In 2010, the Supreme Court decided Padilla v. Kentucky. Padilla determined that under the Sixth Amendment, non-citizens have the right to be informed of deportation risks associated with accepting plea bargains. Non-citizens are entitled to know of this risk because deportation is such a severe consequence. The right to be informed of potential deportation is incorporated into the right to effective assistance of counsel under the Sixth Amendment and does not apply retroactively. Post-Padilla, the issue has arisen as to whether the rule only applies to situations when a lawyer completely fails to inform his client of the deportation risk, or if it also applies when a lawyer provides false advice or misadvice on the subject. In Chavarria v. United States, the Seventh Circuit determined that the Padilla rule applies both to an attorney's misadvice and nonadvice. This Comment (1) discusses the history of deportation-related ineffective assistance of counsel claims; (2) discusses the Seventh Circuit's decision in Chavarria; and (3) argues that Chavarria was correctly decided although the outcome is contrary to Padilla's intent.
Plead Guilty, You Could Face Deportation: Seventh Circuit Rules Misadvice and Nonadvice to Non-Citizens Has Same Effect Under the Sixth Amendment,
Seventh Circuit Rev.
Available at: http://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol10/iss1/5