In Padilla v. Kentucky (2010), the United States Supreme Court held that an attorney renders constitutionally inadequate representation by failing to advise his or her client of the deportation consequences of a guilty plea. Prior to Padilla, many lower courts had adopted a distinction between “direct” and “collateral” consequences of a guilty plea. While defense counsel was required to advise the client of direct consequences (e.g., a potential prison sentence), counsel was not required to warn the client of collateral consequences (which included, in the view of some lower courts, the risk of deportation). Padilla, however, cast doubt on the existence and meaning of a direct/collateral distinction, which immediately raised questions about whether attorneys might be required to advise clients regarding other sorts of consequences that had previously been regarded as collateral.
Earlier today, in United States v. Reeves (No. 11-2328), the Seventh Circuit turned aside an effort to extend Padilla to the risk that a conviction in one case will be used to enhance the defendant’s sentence in a future case.
Here’s what happened.
In 2004, Reeves pled guilty in Illinois state court to a cocaine offense. Then, in 2007, he was arrested for a new drug offense and prosecuted this time in federal court. He was eventually convicted by a jury. At sentencing, over Reeves’ objection, the judge determined that he was subject to an enhancement under 21 U.S.C. §851 by virtue of his 2004 conviction. Reeves argued that his lawyer in 2004 had not advised him that he faced the possibility of an enhanced sentence in future cases, analogizing this failure to the failure of Padilla’s lawyer to provide accurate advice regarding deportation risks.
On appeal, the Seventh Circuit first affirmed that Reeves could permissibly attack his 2004 conviction at sentencing in the new case: “Reeves is correct that if a prior state conviction was established in violation of the Sixth Amendment, that conviction cannot be counted to enhance a later sentence.” (3)
From there, things rapidly went south.
Judge Bauer, writing for the panel, noted that Padilla had not expressly rejected the direct/collateral distinction, but had merely held that the distinction did not preclude a deportation-related claim. (5) “Indeed, Padilla is rife with indications that the Supreme Court meant to limit its scope to the context of deportation only. The Court repeatedly underscored the severity of deportation before deciding that an attorney must always inform his client of that unique risk.” (5)
The Seventh Circuit then distinguished Reeves from Padilla based on the fact that Padilla faced automatic deportation as a result of his guilty plea, while Reeves only risked the possibility of an enhanced sentence if he committed more crimes in the future. (6)
The court then launched this broadside:
We pause for a moment to consider the absurd ramifications of the rule that Reeves asks us to create. Using Padilla as a springboard, we would be forced to hold that counsel has a constitutional duty to advise the client as to how he might best continue his criminal activity while minimizing his risk of future punishment. This would not only represent unattractive public policy, it finds no support in precedent. The Supreme Court created a rule in Padilla specific to the risk of deportation, and we see no justification for extending that to the realm of future criminal sentence enhancements. (6-7)
The concerns here strike me as a bit overstated.
For one thing, I’m not sure why informing a client of possible future sentence enhancements gets characterized as “advis[ing] the client as to how he might best continue his criminal activity while minimizing his risk of future punishment.” Consider an analogy. I think it is fairly common for judges sentencing first- or second-time offenders to say something like, “I’m giving you the benefit of the doubt this time, but if you do this again, you should not expect such lenient treatment.” I don’t think anyone would consider such a statement to be advice on how to continue criminal activity. Indeed, I think we might tend to think it unfair for a judge not to tell a defendant when he is getting a break; otherwise, the defendant might think that he could count on similar treatment the next time around. Likewise, when counsel informs the defendant of what might happen if criminal activity continues after a proposed guilty plea, the transaction might more appropriately be thought of as a fair warning than as encouragement or facilitation of criminal activity.
In any event, what makes Reeves’ rule “absurd,” if anything, is the assumption that a future sentencing enhancement must necessarily be applied in a case involving a deliberately chosen continuation of criminal activity. However, future enhanced sentences might be for strict liability crimes; or crimes of negligence; or crimes of passion, compulsion, addiction, or economic necessity. A few years ago, Harvey Silverglate published a book called “Three Felonies a Day,” with the premise that many of us are committing crimes all of the time without realizing it, given the ever-expanding reach of modern criminal laws. “Three a day” may be a bit of hyperbole, but the catchy title does serve to highlight that not all crimes are like Reeves’ drug trafficking offenses. And if one bears in mind that future enhanced sentences may be imposed for crimes that are inadvertent or otherwise not readily controllable by the defendant, then a rule requiring counsel to warn about sentence enhancements might not seem quite so absurd.
Then, too, there is the risk that the future sentence enhancement will occur in a case of wrongful conviction. It is uncertain how frequently wrongful convictions occur, but the risk is probably much greater for individuals who already have a conviction — precisely the people we must be thinking of when deciding what information counsel should supply in connection with a gulty plea.
This is not to say that I think Reeves should have won, just that the court might have given narrower grounds that would have been less discouraging of Padilla extensions in other, more appropriate circumstances.
What strikes me as a particularly questionable aspect of Reeves’ argument was that he was contending that his lawyer in state court should have advised him of a potential sentencing enhancement in the court of another jurisidction (i.e., the federal system). It is one thing to say that every reasonable lawyer should know and provide advice regarding the sentencing laws of the court in which he or she is practicing, and another to require advice regarding the laws of other jurisdictions. True, state and federal courts enjoy overlapping criminal jurisdiction, but, in any given state, the federal criminal docket is only a small percentage of the state’s. With that in mind, it may be justifiable as a general matter for counsel in a state case to regard the risks of future federal prosecution to be sufficiently low that research and advice regarding federal law is unnecessary.
Reeves, then, might have been on stronger ground if his 2007 arrest had landed him in state court again and he faced a state-law recidivism enhancement (if Illinois indeed had one that would apply).
The Seventh Circuit might have rejected Reeves’ claim on this basis, without making such broad pronouncements about Padilla and sentencing enhancements across the board.