253 S. W. 3d 482, reversed and remanded.
Scalia,
J., dissenting
SUPREME COURT OF THE
UNITED STATES
JOSE
PADILLA, PETITIONER v. KENTUCKY
on writ of certiorari to the supreme court of kentucky
[March 31, 2010]
Justice
Scalia , with whom Justice Thomas joins, dissenting.
In
the best of all possible worlds, criminal defendants contemplating a guilty
plea ought to be advised of all serious collateral consequences of conviction,
and surely ought not to be misadvised. The Constitution, however, is not an
all-purpose tool for judicial construction of a perfect world; and when we
ignore its text in order to make it that, we often find ourselves swinging a
sledge where a tack hammer is needed.
The
Sixth Amendment guarantees
the accused a lawyer “for his defense” against a “criminal prosecutio[n]”—not
for sound advice about the collateral consequences of conviction. For that
reason, and for the practical reasons set forth in Part I of J ustice A lito ’s
concurrence, I dissent from the Court’s conclusion that the Sixth Amendment requires counsel to provide
accurate advice concerning the potential removal consequences of a guilty plea.
For the same reasons, but unlike the concurrence, I do not believe that
affirmative misadvice about those consequences renders an attorney’s assistance
in defending against the prosecution constitutionally inadequate; or that the Sixth Amendment requires counsel to warn
immigrant defendants that a conviction may render them removable. Statutory
provisions can remedy these concerns in a more targeted fashion, and without
producing permanent, and legislatively irreparable, overkill.
The
Sixth Amendment as
originally understood and ratified meant only that a defendant had a right to
employ counsel, or to use volunteered services of counsel. See, United
States v. Van Duzee , 140 U. S. 169, 173 (1891) ; W. Beaney, Right
to Counsel in American Courts 21, 28–29 (1955). We have held, however, that the
Sixth Amendment requires
the provision of counsel to indigent defendants at government expense, Gideon
v. Wainwright , 372 U. S. 335, 344–345 (1963) , and that the
right to “the assistance of counsel” includes the right to effective assistance,
Strickland v. Washington , 466 U. S. 668, 686 (1984) . Even assuming the
validity of these holdings, I reject the significant further extension that the
Court, and to a lesser extent the concurrence, would create. We have until
today at least retained the Sixth Amendment ’s textual limitation to
criminal prosecutions. “[W]e have held that ‘defence’ means defense at trial,
not defense in relation to other objectives that may be important to the
accused.” Rothgery v. Gillespie County, 554 U. S. ___, ___ (2008)
(A lito , J., concurring) (slip op., at 4) (summarizing cases). We have limited
the Sixth Amendment to legal
advice directly related to defense against prosecution of the charged
offense—advice at trial, of course, but also advice at postindictment
interrogations and lineups, Massiah v. United States , 377 U. S. 201, 205–206 (1964) ; United
States v. Wade , 388 U. S. 218, 236–238 (1967) , and in general
advice at all phases of the prosecution where the defendant would be at a
disadvantage when pitted alone against the legally trained agents of the state,
see Moran v. Burbine , 475 U. S. 412, 430 (1986) . Not only have we
not required advice of counsel regarding consequences collateral to
prosecution, we have not even required counsel appointed to defend against one
prosecution to be present when the defendant is interrogated in connection with
another possible prosecution arising from the same event. Texas v. Cobb
, 532 U. S. 162, 164 (2001) .
There
is no basis in text or in principle to extend the constitutionally required
advice regarding guilty pleas beyond those matters germane to the criminal
prosecution at hand—to wit, the sentence that the plea will produce, the higher
sentence that conviction after trial might entail, and the chances of such a
conviction. Such matters fall within “the range of competence demanded of
attorneys in criminal cases,” McMann v. Richardson , 397 U. S. 759, 771 (1970) . See id., at
769–770 (describing the matters counsel and client must consider in connection
with a contemplated guilty plea). We have never held, as the logic of the
Court’s opinion assumes, that once counsel is appointed all professional
responsibilities of counsel—even those extending beyond defense against the
prosecution—become constitutional commands. Cf. Cobb , supra , at
171, n. 2; Moran , supra , at 430. Because the subject of the
misadvice here was not the prosecution for which Jose Padilla was entitled to
effective assistance of counsel, the Sixth Amendment has no application.
Adding
to counsel’s duties an obligation to advise about a conviction’s collateral
consequences has no logical stopping-point. As the concurrence observes,
“[A]
criminal convictio[n] can carry a wide variety of consequences other than
conviction and sentencing, including civil commitment, civil forfeiture, the
loss of the right to vote, disqualification from public benefits, ineligibility
to possess firearms, dishonorable discharge from the Armed Forces, and loss of
business or professional licenses. . . . All of those consequences are
‘serious,’ … .” Ante , at 2–3 ( Alito, J., concurring in judgment).
But
it seems to me that the concurrence suffers from the same defect. The same
indeterminacy, the same inability to know what areas of advice are relevant,
attaches to misadvice. And the concurrence’s suggestion that counsel must warn
defendants of potential removal consequences, see ante , at 14–15—what
would come to be known as the “ Padilla warning”—cannot be limited to
those consequences except by judicial caprice. It is difficult to believe that
the warning requirement would not be extended, for example, to the risk of
heightened sentences in later federal prosecutions pursuant to the Armed Career
Criminal Act, 18 U. S. C. §924(e). We could expect years of
elaboration upon these new issues in the lower courts, prompted by the defense
bar’s devising of ever-expanding categories of plea-invalidating misadvice and
failures to warn—not to mention innumerable evidentiary hearings to determine
whether misadvice really occurred or whether the warning was really given.
The
concurrence’s treatment of misadvice seems driven by concern about the
voluntariness of Padilla’s guilty plea. See ante , at 12. But that
concern properly relates to the Due Process Clauses of the Fifth and Fourteenth Amendment s, not
to the Sixth Amendment . See McCarthy
v. United States , 394 U. S. 459, 466 (1969) ; Brady v. United
States , 397 U. S. 742, 748 (1970) .
Padilla has not argued before us that his guilty plea was not knowing and
voluntary. If that is, however, the true substance of his claim (and if he has
properly preserved it) the state court can address it on remand. 1 But
we should not smuggle the claim into the Sixth Amendment .
The
Court’s holding prevents legislation that could solve the problems addressed by
today’s opinions in a more precise and targeted fashion. If the subject had not
been constitutionalized, legislation could specify which categories of
misadvice about matters ancillary to the prosecution invalidate plea
agreements, what collateral consequences counsel must bring to a defendant’s
attention, and what warnings must be given. 2 Moreover,
legislation could provide consequences for the misadvice, nonadvice, or failure
to warn, other than nullification of a criminal conviction after the witnesses
and evidence needed for retrial have disappeared. Federal immigration law might
provide, for example, that the near-automatic removal which follows from
certain criminal convictions will not apply where the conviction rested upon a
guilty plea induced by counsel’s misadvice regarding removal consequences. Or
legislation might put the government to a choice in such circumstances: Either
retry the defendant or forgo the removal. But all that has been precluded in
favor of today’s sledge hammer.
In
sum, the Sixth Amendment guarantees
adequate assistance of counsel in defending against a pending criminal
prosecution. We should limit both the constitutional obligation to provide
advice and the consequences of bad advice to that well defined area.
Notes
1 I do not mean to suggest that the Due Process Clause would surely
provide relief. We have indicated that awareness of “direct consequences”
suffices for the validity of a guilty plea. See Brady, 397 U. S., at 755
(internal quotation marks omitted). And the required colloquy between a federal
district court and a defendant required by Federal Rule of Criminal Procedure
11(b) (formerly Rule 11(c)), which we have said approximates the due process
requirements for a valid plea, see Libretti v. United States, 516 U. S. 29, 49–50 (1995) , does not mention
collateral consequences. Whatever the outcome, however, the effect of misadvice
regarding such consequences upon the validity of a guilty plea should be
analyzed under the Due Process Clause.
2 As
the Court’s opinion notes, ante, at 16–17, n. 15, many States—including
Kentucky—already require that criminal defendants be warned of potential
removal consequences.-----
