Tag Archives: Criminal Procedure

Justice Stevens’ Last Hurrah (Maybe)

Last week the U.S. Supreme Court  handed down a significant decision in Padilla v. Kentucky written by Justice Stevens, which held that  criminal defense attorneys must now advise their clients of the immigration consequences of a criminal conviction.  Prior to this ruling, most state and federal courts scoffed at such a requirement, chastising counsel only when he or she misadvised a client about whether the risk of deportation posed by a conviction.  One upshot of those decisions was the encouragement of counsel, particularly the uncaring and lackadaisical ones, to remain silent when it came to the point of a case where the worlds of criminal procedure and immigration law intersected.  After Padilla, that will no longer be the case.  And, it is, of course, too early to tell whether the post-Padilla regime will result in better representation for clients.

What I am puzzled about is whether the rule announced in Padilla will have any retroactive effect as to convictions that became final after the Court decided Padilla, particularly in postconviction/collateral proceedings.  An initial review of Justice O’Connor’s seminal decision in Teague v. Lane brings me to the conclusion that Padilla could NOT be applied retroactively even with reference to Justice Harlan’s “ordered liberty” exception, i.e., that the rule announced in Padilla would be “the kind of absolute prerequisite to[a trial’s] fundamental fairness that is “implicit in the concept of ordered liberty.” ”

For those postconviction/criminal procedure gurus who may happen to stumble across this blog entry, I would greatly appreciate your collective thoughts on this issue.

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