Half-Empty Glass

Some people focus on the silver lining.

Justice Stevens' opinion (sorry, Bennett, I prefer the visual aesthetic of omitting that final "s") in Padilla v. Kentucky is really a wonderful thing. Regardless of whether he announces his retirement this month - as many, perhaps most, expect - Padilla should justly be viewed as a highlight.

The very short version: Lawyers have an obligation to tell non-citizen clients about the immigration consequences of a plea if those consequences can be readily determined. When they can't be, a more general warning, something on the line of "There may be adverse consequences; you should check with someone if that matters to you," is required. Mark Bennett's summary is even simpler than mine.

The gloss is no longer enough. Now, if the law clearly requires deportation, the law (and not just ethics and conscience) requires the lawyer to tell the client.

He adds, rightly,

It’s about damn time.

In fact, Padilla is a terrific opinion for more than just the formal holding.

There's the reminder that although the lower courts have routinely said that the right to effective assistance of counsel doesn't include the right to effective assistance in regard to collateral consequences of pleas or convictions, the Supremes have never said that. (Russ Bensing's post this morning spins out, with focus on Ohio, some of the collateral consequences to which criminal defense lawyers ought to be paying more attention.)

There's the recognition that ABA standards for defense counsel

may be valuable measures of the prevailing professional norms of effective representation.

That's particularly notable in light of the almost cavalier dismissal of the significance of those standards just a few months ago in Bobby v. Van Hook.

There's the recognition that "deportation is intimately related to the criminal process," which has led at least one person to suggest that the case lends itself to challenging Miranda-free interrogations by ICE with the statements then being admitted at criminal trials.

All this and more. It is, as I say, a great opinion.

But if some people focus on the silver lining, I can't help paying lots of attention to the cloud.

The other day it was Clarence Thomas suggesting that in the right case he'd be happy to reconsider the claim that it's unconstitutional to insist that juries must actually represent a "fair cross section of the community." Why not go back to the framer's idea? White, male, property owners from nearby.

Today it's Scalia (joined by Thomas) hinting that the Constitution does not mandate counsel for anyone and certainly doesn't mandate that counsel be competent.*

The Sixth Amendment as originally understood and ratified meant only that a defendant had a right to employ counsel, or to use volunteered services of counsel. See, United States v. Van Duzee, 140 U. S. 169, 173 (1891); W. Beaney, Right to Counsel in American Courts 21, 28–29(1955). We have held, however, that the Sixth Amendment requires the provision of counsel to indigent defendants at government expense, Gideon v. Wainwright, 372 U. S. 335, 344–345 (1963), and that the right to “the assistance of counsel” includes the right to effective assistance, Strickland v. Washington, 466 U. S. 668, 686 (1984). Even assuming the validity of these holdings, I reject the significant further extension that the Court, and to a lesser extent the concurrence, would create.

The boldface is mine.

Forget that appointed counsel stuff. Oh, sure, states (and even the feds) can provide counsel if they want. There's nothing inherently unconstitutional about public defenders. (At least, they haven't yet suggested that.) But required? Don't be silly. The Sixth Amendment just says counsel's allowed. Defendants who manage to get themselves lawyers can have the lawyers defend them. But it's the defendant's burden to find (and pay) willing counsel.
In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.

And, by god, the defendant who manages to arrange counsel certainly has no right to have the counsel be even marginally competent.

Today only Scalia and Thomas are going there. And there's a fair chance that only Thomas would actually vote to overturn Gideon or Strickland. But time has an ugly way of catching up to the worst possibility.

Yet more need for the PD Revolution.

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*Bennett noted their wariness in his post on Padilla, but didn't focus on it.