While in my final semester of law school, the United States Supreme Court issued its decision in Padilla v. Kentcuky, holding that the Sixth Amendment’s guarantee to the effective assistance of counsel includes affirmative advice about the immigration consequences that flow from a criminal conviction.  559 U.S. 356 (2010). I have never practiced criminal defense in a pre-Padilla world. I have always considered it my duty, through research, and often times consultation with an immigration attorney, to determine what the client is facing if he or she accepts a plea. Likewise, I have always considered it my duty, if it is important to the client, to try and mitigate the immigration consequences when negotiating a plea. While it is impossible to mitigate all immigration consequences, it is possible to provide clients with an analysis about the consequences, or potential consequences, of a plea. The most important thing, in my opinion, is that a client understands the immigration consequences associated with a conviction, and thus, is given an opportunity to make an informed decision.

Prior to Padilla, immigration consequences were considered a collateral consequence of a criminal conviction, which meant that a claim of ineffective assistance of counsel was limited to instances of affirmative misadvice, rather than failure to render any advice at all. Padilla changed the landscape of the Sixth Amendment, and the decision reflects the Court’s recognition that deportation has long been recognized particularly harsh penalty associated with a criminal conviction, and that changes to the immigration law have made deportation “virtually inevitable” for most non-citizens with a criminal conviction. Id. at 360.

The Padilla Court, however, seemed to split the deficient performance prong of a Strickland analysis by linking the specificity of the advice required with the clarity of the immigration consequence. Accordingly, when the immigration consequences of conviction are “clear,” or “succinct and straightforward,” counsel’s obligation to give specific advice regarding those consequences is “equally clear.” Padilla, 559 U.S. at 369. In an unclear situation, a defense attorney still must advise his client, but the advice may be reduced to a more general warning. Id. Thus, leaving open for interpretation what constitutes a “clear” consequence, and what defense counsel’s duties are to find out the consequence.

Earlier this year I litigated State v. Fernando Ortiz-Mondragon, 2015 WI 73, 364 Wis. 2d 1, 866 N.W.2d 717, which asked the Wisconsin Supreme Court to interpret what constituted “clear” under Padilla. I argued that counsel had a duty to determine that substantial battery, domestic abuse, was a crime involving moral turpitude and that counsel then had a duty to advise the defendant about the immigration consequences for a conviction of a crime involving moral turpitude. The Wisconsin Court disagreed, concluding that federal immigration law does not explicitly provide that substantial battery, domestic abuse, is a crime involving moral turpitude. Id. ¶ 70. Although there was no Machner hearing, and thus no way of knowing what, if anything, the lawyer did to counsel his client about adverse immigration consequences, the Court determined that the generic language contained in a plea questionnaire constituted affirmative advice, and that it was correct advice. Id. Lastly, the Court held that any failure of defense counsel to further research the immigration consequences was not deficient. Id.

As pointed out in the dissent, the majority opinion is preoccupied with the difficulty of defining “crimes of moral turpitude” and in that preoccupation, ignored the fact that the analogous case law makes it clear that substantial battery, domestic abuse, is a crime of moral turpitude. By shifting its focus to the definition of “crime involving moral turpitude,” the majority watered down Padilla. Absent from the record was any indication that defense counsel conducted any research or investigation into the immigration consequences, or that counsel even read the relevant statute. By relying on the plea questionnaire as evidence of legal counsel, the Wisconsin Supreme Court removed some of the protections that the Sixth Amendment guarantees and created a second class of criminal defendants.  As a result, non-citizens accused of crimes not explicitly enumerated in the immigration statute are not entitled to available immigration advice. For example, a defendant accused of a crime not in the statute, but for which there is Seventh Circuit precedent holding that the offense qualifies a crime of moral turpitude, may not be entitled to the specific advice because there is no duty to research.

This holding is contrary not only to the spirit of Padilla, but to a long line of cases employing the Strickland analysis. So, what does this mean for defense attorneys in Wisconsin? I think that defense attorneys should be guided by best practice, as opposed to the bare minimum of constitutionally competent representation. In Padilla, the United States Supreme Court looked to professional organizations for guidance. In other words, it wanted to know what defense attorneys and the like were doing, and what they perceived their duties to be. The legal community has responded to Padilla in a way that suggests our duties go well beyond the generic advice the Wisconsin Court sanctioned. There are numerous guidebooks and trainings that have been made available to defense counsel. The Wisconsin State Public Defender has created a practice group for attorneys to ask questions and share research in order to provide detailed advice to non-citizen clients. Both state and national organizations are in accord that even when a crime is not enumerated in the statute, the consequences are knowable. And, even when the consequence is unclear, we can do better than the generic warning in a plea questionnaire. The Sixth Amendment, and our clients deserve better