Be Careful How You Plead: Collateral Consequences Could Mean Deportation

Provided by Albert L. Wysocki, Waukegan Criminal Lawyer

In late January 2010, federal officials announced the arrests of nearly 500 immigrants tied to drug trafficking and gangs nationwide. Twelve of the arrests were in the Chicago area, but perhaps most surprising was where the arrests took place: not in the city of Chicago itself, but in the northern suburbs. Towns in which immigrants were arrested include Algonquin, Carpentersville, Elgin, Hanover Park, Palatine, Schaumburg, Streamwood, Vernon Hills and Waukegan.

The arrests have drawn media attention, but they also bring into sharp focus the important connection between a criminal conviction and potential deportation for an immigrant who may be accused of a crime. Under the provisions of the federal Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) of 1996, deportation is virtually assured for noncitizens convicted of aggravated felonies.

For many immigrants, deportation is a much a more serious consequence of a guilty plea than a prison sentence. But what happens if an inexperienced defense attorney advises an immigrant to plead guilty to a charge rather than face a protracted trial and potentially longer prison sentence, even though a guilty plea carries with it almost certain deportation?

That’s precisely the question before the U.S. Supreme Court this year in the case of Padilla v. Kentucky.

Sixth Amendment Right to Counsel

The Sixth Amendment to the U.S. Constitution guarantees a person accused in a criminal matter the right to “Assistance of Counsel for his defense.” But if that person’s lawyer isn’t very effective, the whole adversarial process of the courts doesn’t work and justice isn’t served. For that reason, courts on occasion will set aside judgments if a person convicted of a crime received bad legal advice.

In the case of Padilla v. Kentucky, Jose Padilla, a lawful permanent resident of the U.S. who was born in Honduras in 1950 and had served in the U.S. military during the Vietnam War, was arrested in Kentucky when his 18-wheel truck was found to contain over 1,000 pounds of marijuana.

Padilla’s attorney advised him to accept a plea bargain, which he did, but not before asking his lawyer whether it would affect Padilla’s immigration status. His attorney incorrectly advised him that he “did not have to worry about immigration status since he had been in the country so long.”

Now Padilla faces deportation to Honduras following his prison term, despite having lived in the U.S. all his adult life.

Collateral Consequences

In the Kentucky courts, Padilla drew a distinction between a lawyer who simply failed to mention a possible consequence of a guilty plea and his situation, in which his attorney affirmatively gave him incorrect advice. The state of Kentucky countered that this distinction didn’t matter because either way the outcome was a collateral consequence of a guilty plea. In other words, there may be many bad consequences of a guilty plea (such as loss of the right to vote, own a firearm or serve on a jury), and an attorney cannot be expected to advise his or her client about all of them.

Many courts nationwide have taken similar cases and determined that the failure of legal counsel to advise of collateral issues is not a Sixth Amendment problem.

Padilla also argued that even if there are many collateral consequences of guilty pleas, deportation is too important to be considered merely collateral, because for many immigrants, deportation will matter much more than prison sentences would.

When the Supreme Court heard oral arguments in the case last October, some justices seemed to have reservations about the precedent that could be set by a decision that recognizes different degrees of collateral consequences. Justice Ginsburg illustrated the difficult questions in the case when she asked Padilla’s attorney to draw a line between “the consequences that count and those that don’t.”

A decision in the Padilla case is expected soon and could potentially have a wide-reaching effect on criminal cases involving immigrants to the U.S. But regardless of the outcome, the case demonstrates that there are many consequences to a guilty plea, and only an experienced criminal law defense attorney who takes the time to fully understand the client’s situation can advise his or her client effectively.

Think Before Posting

What possible harm could come from a college student posting to Facebook photos of a party she attended? In the case of Erika Scoliere, a 20-year-old charged in a fatal DUI crash, the party pictures mean she now has to wear an alcohol-monitoring device at all times.

After the photos of her drinking tequila were shown to a judge, the Campton Hills resident was fitted with a monitoring device on her ankle. Scoliere is awaiting trial on a reckless homicide charge after a July 2007 collision left a motorcyclist dead. When she was granted bail, a condition of her release was that she not consume alcohol or be with people consuming alcohol.

Though her attorney argued that the device, which detects alcohol via perspiration, would invite public scorn, the judge said Scoliere must wear the bracelet regardless.

Accompanied by her parents, Scoliere left the courtroom in tears.

Law enforcement officials and prosecutors are increasingly paying attention to Facebook accounts and other social networking sites as part of their investigations.

A Wisconsin man also learned that it’s unwise to post incriminating photos on Facebook. Dane County Sheriff’s deputies arrested Cody J. Redenius, 20, after a posted photo showed him holding a shotgun.

While that would ordinarily be a harmless photo, Redenius was under a domestic abuse restraining order prohibiting him from possessing a firearm. His ex-girlfriend informed investigators of the photo on his Facebook account. They arrested him at his home, where they found the loaded shotgun.

It’s unwise to post incriminating photos to Facebook or elsewhere on the Internet, but incriminating statements, even if they’re made as jokes, can likewise have serious consequences. The Lisle Police Department arrested a 15-year-old Lisle High School student for posting threatening statements on his Facebook page.

Police were notified that the student had posted statements about a “need” for domestic terrorism at his school. He also stated that he was considering committing a random killing.

He faces two misdemeanor charges and must now wear a home detention ankle bracelet monitoring his movements. Police say they must take all such threats seriously, no matter how they may have been intended.

For many teenagers and young adults, Facebook has become an extension of their private lives. Stories that were once shared confidentially through telephone calls and social gatherings are now memorialized publicly, with little regard for the potential consequences.

Unfortunately, these consequences can be severe and long-lasting. Accordingly, it is important that users of online social networking sites protect themselves. Think twice before posting anything, but particularly before posting potentially incriminating evidence.