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Folder: National Reentry Research and Policy Library > National Research & Policy Folder > Most Popular Topics > Immigration > State by State - Padilla v. Kentucky Compliance Guide

This page contains links to practice materials that will assist defense counsel, judges, and prosecutors comply with these new minimum standards.

  • In March 2010, the U.S. Supreme Court in Padilla v. Kentucky, 599 U.S. __ (2010), ruled that defense counsel must give affirmative, competent advice to clients of the risk of all penalties "enmeshed" with the criminal charges or potential pleas.
  • The Court held that for evaluating the effective assistance of counsel, the Sixth Amendment does not distinguish between the "direct" and "collateral" consequences of pleas - the relevant inquiry is the extent to which the penalty is enmeshed with the criminal process or charges.
  • The Court recognized that preserving rights such as immigration status may be more important to the defendant than any jail sentence. Padilla, 130 S.Ct. at 1483.
  • The ruling concerned deportation specifically, but other serious penalties enmeshed with criminal charges include public housing eligibility, employment, sex offense registration, voting, and student loans. These penalties share with deportation the same unique characteristics outlined by the Supreme Court. Legislatures across the country have "intimately related" these penalties and the availability of these programs or rights to criminal charges and convictions. Legal changes over the last few decades have made termination or rejection from these programs or rights nearly an automatic result for a broad class of people.
  • The Court explicitly encouraged creative pleas to avoid these enmeshed penalties.

Resources

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  • [Montana] Representing Immigrant Defendants After Padilla V. Kentucky (Office of the Montana State Public Defender)