Where Do We Go from Here: Plea Colloquy Warnings and Immigration Consequences Post-Padilla

This Note argues for the passage of criminal procedure rules that would require judges to warn criminal defendants about immigration consequences at plea colloquy. Part I addresses the overlap of criminal and immigration law, arguing that the increased use of the criminal justice system to police federal immigration laws calls for greater protection of non-citizen defendants at plea colloquy. Part II then addresses the legal duties imposed on both defense counsel and trial courts in relation to plea colloquy. Padilla merely addressed the duty of defense counsel to provide constitutionally effective assistance before plea colloquy and did not reach the question of whether a trial court’s duty at plea colloquy need be altered as well. However, in light of the Supreme Court’s cabining of deportation as a unique consequence, the altered legal duty of defense counsel post-Padilla necessarily calls for a re-examination of the legal duty of trial courts as well. This is especially true in light of the fact that a trial court’s assessment of the validity of a plea is conditioned on the quality of assistance provided by defense counsel. Although Padilla does not mandate that trial courts re-assess the language of their plea colloquy warnings, a changed duty on the part of defense counsel will realistically lead to a changed duty on the part of trial courts. Taking these considerations into account, in Part III I will thus introduce model language for new criminal rules of procedure that would impose a duty upon courts to inform all criminal defendants of immigration consequences at plea colloquy. Standing alone, Padilla’s holding is not robust enough to safeguard the interests of non-citizen defendants; the holding is deliberately limited to clear cases involving only the adverse immigration consequence of deportation. Given the vast deference afforded to defense counsel under the ineffective assistance of counsel inquiry, a mere policing of defense counsel’s duty will not actually result in added protections for non-citizen defendants. Court instruction on the immigration consequences of criminal activity is thus necessary in order to: (1) secure well-informed pleas by non-citizen defendants; and (2) conserve the limited resources of the criminal justice system.