The Right to Deportation Counsel in Padilla v. Kentucky : The Challenging Construction of the Fifth-and-a-Half Amendment

Abstract

The U.S. Supreme Court’s pathbreaking decision in Padilla v. Kentucky seems reasonably simple and exact: Sixth Amendment norms were applied to noncitizen Jose Padilla’s claim that his criminal defense counsel was ineffective due to allegedly incorrect advice concerning the risk of deportation. This was a very significant move with virtues of both logic and justice. It will likely prevent many avoidable and wrongful deportations. It may also help some deportees who have been wrongly or unjustly deported in the past. However, the apparent exactness of the case, as a Sixth Amendment decision, raises fundamental constitutional questions. For more than a century, courts have formalistically distinguished between two consequences of criminal convictions: the punishment meted out in criminal courts and deportation. The former is, of course, a criminal sanction, while the latter is said to be civil or, at most, quasi-criminal. This Article suggests that Padilla has implicitly challenged this model with potentially powerful consequences. Padilla cannot be squared with the historical, formalist relegation of deportation to the realm of civil collateral consequences in which there is no clear constitutional right to counsel. This Article thus seeks to elucidate how the Padilla opinion might model a viable constitutional reconciliation between the Court’s historical formalism and its current realism. This model bridges Fifth and Sixth Amendment jurisprudence and limns a new constitutional norm for deportation that we might call the Fifth-and-a-Half Amendment (Amendment V½). It embodies both the flexible due process guarantees of the Fifth Amendment and – at least for certain types of deportation – the more specific protections of the Sixth Amendment. Amendment V½ is certainly not a perfect solution. However, so long as deportation is formalistically understood as civil and nonpunitive while, in reality, being directly tied to the criminal justice system and highly punitive in effect, it is a legitimate and necessary construct.

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