Ignorance Is Effectively Bliss: Collateral Consequences, Silence, and Misinformation in the Guilty-Plea Process

This article explores the predecessors of the Supreme Court’s 2010 decision in Padilla v. Kentucky, answering the question of whether deportation resulting from a guilty plea is a collateral consequence that an attorney does not have to inform their client about. The collateral consequences rule states that the individual pleading guilty need only be informed about the “direct,” or penal, sanctions which will result from the conviction for the plea to be constitutionally valid. The dichotomy of the collateral consequences rule and affirmative misrepresentation rule encourages criminal defense attorneys to stay silent when they should be advising their clients of collateral consequences of a guilty plea, like deportation. Other examples include involuntary civil commitment, sex-offender registration, losing the right to vote or obtain professional licenses, and receiving public assistance. This issue balances a lawyer’s professional duties, ethics, transparency, and their client’s right to information in the plea process. In Padilla, the Kentucky Supreme Court held that a defendant’s Sixth Amendment right to the effective assistance of counsel was not violated, even though his counsel advised him incorrectly, because the advice pertained to a “collateral” consequence of his sentence. This article argues that deportation, among other collateral consequences, is a potential consequence of a plea that a defendant must be informed about in order for his plea to be voluntary and knowing.

“Defense lawyers should have a constitutional duty to accurately counsel their clients about any consequence that is significant enough to factor into that client’s decision-making process about whether to plead guilty. Recognizing such a duty in the Sixth Amendment’s right to the effective assistance of counsel will bring the constitutional jurisprudence in line with the professional norms in this area. It will also be true to the Supreme Court’s fact-specific approach to evaluating claims of ineffective assistance, by recognizing that the Sixth Amendment does require advice when it would be unreasonable to withhold it.” p. 194