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The Sixth Amendment Right to Counsel is considered one of the most sacred of all trial rights in this country. In March 2010, the United States Supreme Court issued a decision titled Padilla v. Kentucky which significantly expanded a criminal defendant’s right to effective assistance of counsel. In that case, the Supreme Court concluded that a trial lawyer’s failure to disclose to his client that a plea to a drug related offense would cause deportation deprived the defendant of his Sixth Amendment right to an effective attorney.

Padilla who was born in Honduras had been a permanent resident of the United States for more than 40 years. He served honorably with the United States Armed Forces during the Vietnam War and, otherwise, lead a law abiding life. Padilla plead guilty to a crime involving a significant amount of marijuana/pot while driving his tractor trailer in Kentucky. The nature of the offense was such that deportation was a relative certainty. Padilla claimed, however, that his lawyer advised him that a guilty plea would not trigger deportation proceedings because he had been in this country for an extended time. When he learned that that advice was ill-founded, he filed a petition for post conviction relief, claiming that he was deprived of the effective assistance of counsel. The Supreme Court of Kentucky denied the request and concluded that Sixth Amendment’s guarantee of effective assistance of counsel provided no protection for the negligent advice of counsel with respect to matters collateral to the sentencing process.

The case found its way to the United States Supreme Court, where seven Justices of the Court ruled that Padilla had indeed been deprived of the effective assistance of counsel. Even the two dissenters in the case suggested that they may have voted with the majority had Padilla’s claim been grounded upon the Due Process Clause rather then the Sixth Amendment.

In rendering its decision, the majority traced the metamorphous of the deportation process in the context of the criminal justice system and noted that deportation was equivalent to a banishment or exile and, that as a result, it was an important and intricate part of the sentencing process for non-citizens. The Court also suggested that the decision in Padilla would have retroactive effective on cases in which a defendant was not properly advised of the consequences of a criminal conviction on the government’s ability to deport.

Some recent articles on the issue have indicated that the Padilla may be applicable to cases where lawyers fail to disclose to their clients other collateral consequences associated with a criminal conviction, including registration for certain sex offenders, loss of scholarships and public housing and even the loss of a driver’s license.

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