Supreme Court Ruling Speaks of a New Kind of Public Defense

In a single bold stroke last week, the Supreme Court redefined what criminal defense should be. Ruling in the case of Padilla v. Kentucky, the justices held that a lawyer who failed to advise a client of the immigration consequences of a guilty plea in a marijuana case had rendered his client ineffective assistance of counsel. In other words, it's no longer enough for a criminal defense lawyer to just worry about the criminal charges a client is facing. The Padilla decision hands a big victory to the small cadre of public defender offices leading the movement to shift the nature of public defender work toward a more holistic model of client representation.

For the last decade, criminal representation at The Bronx Defenders has included counsel from full-time immigration attorneys. In addition to advising clients, our immigration staff attorneys educate prosecutors and judges about the immigration consequences of pleading guilty. While a small number of defender offices have done similar things, the sad truth is that in public defender offices across the country, criminal defense and civil immigration representation remain in silos, to the profound detriment of noncitizen clients.

The circumstances in a recent New York case perfectly illustrate the terrible problem with the current state of affairs at most public defender offices: A few winters ago, Jerry Lemaine was arrested for possessing a marijuana cigarette. His Legal Aid lawyer told him to plead guilty. Why not? The maximum penalty was a $100.00 fine. The problem: that plea--even though it was considered a non-criminal offense in New York State, rendered Mr. Lemaine deportable, initiating an odyssey that would leave him languishing in a federal immigration jail for nearly three years. Had his lawyer mentioned this as a possibility, it's likely, Mr. Lemaine would not have taken the deal.

Unfortunately, because of broken window policing and "tough on crime" legislation, Mr. Lemaine is the rule not the exception. The reality of today's criminal justice system is that the vast majority of criminal convictions are minor, while the consequences of those convictions are anything but. These days, even the most minor misdemeanor convictions can easily cost a defendant the right to live in this country. They can also trigger an eviction from public housing, elimination from public benefits, the denial of college financial aid, or the removal of children. Referred to as "invisible punishments" and "collateral consequences," they are enmeshed with criminal convictions and for many clients already living in poverty, these disastrous outcomes far outweigh the criminal charges they face.

As Mr. Lemaine's case illustrates, when hidden collateral consequences are introduced into the equation, a client's priorities can shift entirely. With holistic representation from a full cast of civil attorneys - specializing in immigration, employment, housing, and family law- our clients at The Bronx Defenders often make decisions that seem illogical in the criminal context, fighting cases even when it means staying in jail. Here's why: A single a plea to disorderly conduct will trigger a three year ban from New York City public housing, and two pleas to turnstile jumping can result in deportation.

However, holistic defense - or anything remotely resembling it - is still not mandated or funded by the government and most indigent clients take pleas from their court-appointed criminal defenders with no sense of the veiled sentences in store for them.

Padilla v. Kentucky was limited to immigration, but the Supreme Court has hastened a long overdue transformation of public defender offices around the country toward a more holistic and comprehensive model of representation.