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Debunking the Myth That Deportation Is Not Punishment

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The Supreme Court has heard argument in a case (Padilla v. Kentucky) in which a defendant who pled guilty claims that he was improperly advised by his lawyer that he would not be deported, notwithstanding that deportation was virtually certain as the result of his plea. The defendant had lived in the United States for 40 years, served in the Vietnam War and was a permanent legal resident. In addition to facing deportation, he received a five year sentence. The argument against his position seems to be that neither the sentencing court nor counsel is obligated to inform the defendant of "collateral matters" such as the possibility or probability of deportation that may arise from his guilty plea. Justice Scalia poses the issue as to other consequences such as the possible loss of child custody or one's driver's license.

There can be no dispute that both counsel in recommending and the court in accepting a guilty plea must inform the defendant of the maximum punishment he faces as a result. In my opinion, that disclosure must include the possibility of deportation. In earlier cases, the Supreme Court has created the myth that deportation is not a form of criminal punishment but rather a civil remedy aimed at excluding unwanted aliens. This legal fiction that deportation following a plea agreement is not punishment and therefore, need not be disclosed is difficult to reconcile with reality.

If you will forgive me the conceit of quoting from one of my own opinions, in which a defendant was not informed of the risk of deportation:

The defendant entered this country at age 12; he has lived here for 36 years; he has been married to an American citizen for 24 years; he has raised 3 children all of whom are American citizens; his elderly parents are American citizens; 2 of his 4 siblings are naturalized American citizens and all 4 of them reside permanently in the United States; he has no ties to Colombia, the country to which he is to be deported; and he has fully served the sentence imposed upon him. If deportation under such circumstances is not punishment, it is difficult to envision what is. Scheidemann v. I.N.S. 83 F.3d 1517,1527 (3rd Cir. 1996)

The consequences of deportation can be so harsh that they are at least the equivalent of prison time, or even worse. It should be a simple matter for the Court to rule that counsel and the trial court are obligated to disclose the risk of deportation, and that failing same, a defendant should have the right to withdraw his or her guilty plea and go to trial. The case is even stronger where counsel has misinformed the client rather than merely failing to inform. Deportation is punishment and defendants should be warned if they face it as a result of their guilty plea.

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