The risk of deportation as a potential consequence of a guilty plea.

In Padilla v Kentucky, ___ US ___; 130 S Ct 1473 (2010) the United States Supreme Court held that defense counsel is required to inform a defendant about the risk of deportation as a potential consequence of a guilty plea when the risk of deportation is clear. The Supreme Court also noted that in “situations in which the deportation consequences of a particular plea are unclear or uncertain, … a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.”

The Michigan Supreme Court is considering the adoption of a specific Court Rule to implement this decision. Proposal A would require a judge to ask a noncitizen defendant and the defendant’s lawyer if they have discussed possible risk of deportation as a consequence of a guilty plea. The focus of this inquiry is whether the defendant is a noncitizen, and what the defense counsel has told the defendant. Proposal B would require a judge to give general advice to any defendant (whether or not the defendant is represented by counsel) that a guilty plea by a noncitizen may carry immigration consequences. This alternative would obviate the need to determine the defendant’s citizenship status, which the defendant may not know or be willing to divulge.

On September 10, 2010 the State Bar Criminal Jurisprudence & Practice Committee will discuss the U.S. Supreme Court decision and the proposed Michigan Court Rule alternatives.  CJ&P reviews proposed court rules and statutes related to criminal procedure and practice in state courts and makes recommendations concerning improvements in the operation of criminal law and procedure to promote the fair, speedy and efficient administration of criminal justice.  As co-chair of this committee, I would be interested in your comments or suggestions.  You can email me at dhoort@ioniacounty.org.