Padilla v. Kentucky: The Effect of Plea Colloquy Warnings on Defendants' Ability To Bring Successful "Padilla" Claims

In Padilla v. Kentucky, the Supreme Court held that a lawyer's failure to advise her noncitizen client of the deportation consequences of a guilty plea constitutes deficient performance of counsel in violation of a defendant's Sixth Amendment rights. In the plea context, defendants are also protected by the Fifth Amendment privilege against self-incrimination and the Due Process Clause, which requires that judges and defendants engage in a conversation regarding the consequences of the plea — the so-called "plea colloquy" — before the defendant can enter a valid guilty plea. In many plea colloquies, judges issue general warnings to defendants regarding the immigration consequences of a guilty plea. Since Padilla, a number of lower courts have held that such general court warnings prevent a defendant from proving prejudice and prevailing on an ineffective assistance of counsel claim where there might otherwise be a Padilla Sixth Amendment violation. This Note argues that those rulings mistakenly conflate the role of the court in a Fifth Amendment plea colloquy and the role of counsel under the Sixth Amendment and, further, that they misread the clear directives of Padilla. In the plea context, the court and defense counsel serve complementary but distinct functions in our constitutional structure; neither can replace the other, and the failure of either court or counsel constitutes a breakdown in our system. Circumscribing Padilla's requirements by allowing plea colloquies to "cure" the prejudice created by Sixth Amendment Padilla violations is problematic because the Fifth Amendment plea colloquy provides significantly less protection to criminal defendants. Thus, the substitution of the plea colloquy for advice from counsel will substantially undercut the Padilla decision.