For the Defense - Vol. 8, Issue 4 - 46

Pennsylvania's Padilla
Problem
S
ince the Supreme Court's 2010 decision in Padilla v. Kentucky,
holding that criminal defense counsel has a constitutional
obligation to advise noncitizens of the potential immigration
consequences of a criminal conviction prior to taking a plea,1
no study has been done regarding its impact or implementation
in Pennsylvania. In response to this, in 2023 a research team in
Philadelphia conducted the first-ever statewide study of Padilla
implementation in Pennsylvania, the results of which will be
published in a forthcoming article in the University of Pennsylvania
Carey Law School's Journal of Constitutional Law.
Interviews with Pennsylvania public defenders revealed that the
systemic underfunding of public defense coupled with the failure
of Pennsylvania courts to uphold Padilla's central tenants have
resulted in widespread variation in defense practices for advising
and advocating for noncitizen clients across the Commonwealth. This
article summarizes what is required under Padilla, the Commonwealth
Courts' erroneous interpretation of Padilla's requirements, and
provides a brief overview of current Padilla practices in public defense
offices across the state. It also calls on practitioners to challenge
the status quo and raise the defense bar to ensure constitutionally
adequate representation to individuals charged with crimes, citizen
and noncitizen alike.
46 For The Defense l Vol. 8, Issue 4
Padilla's Requirements and American Bar Association Standards
The Supreme Court of the United States decided Padilla v. Kentucky
in 2010.2
In its decision, the Court concluded that " deportation is
an integral part-indeed, sometimes the most important part-of
the penalty that may be imposed on noncitizen defendants who
plead guilty to specified crimes. " 3
deportation falls within the Sixth Amendment's ambit.4
Accordingly, advice regarding
Padilla's
holding was twofold: (1) criminal defense counsel must provide
effective advice about potential immigration consequences of a plea
or sentence; and (2) criminal defense counsel must provide effective
immigration-conscious advocacy in plea negotiations.
Following Padilla, the American Bar Association ( " ABA " ) issued
new criminal justice standards for defense lawyers.5
These standards
state that defense counsel should " identify, and advise " clients of
collateral consequences stemming from a charge, plea or conviction.6
The ABA instructs defense counsel to " investigate consequences "
and " seek assistance " from others with specialized knowledge in
order to fulfill their advice obligations.7
The ABA delineates special
consideration for immigration status consequences: " counsel should
investigate and identify particular immigration consequences that
might follow possible criminal dispositions " and subsequently

For the Defense - Vol. 8, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 8, Issue 4

Contents
For the Defense - Vol. 8, Issue 4 - 1
For the Defense - Vol. 8, Issue 4 - 2
For the Defense - Vol. 8, Issue 4 - Contents
For the Defense - Vol. 8, Issue 4 - 4
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