We’re still only a few hours out from the release of today’s Supreme Court decision in Padilla v. Kentucky–-the facts and issues of which I’ve previously summarized here—and there’s no way I’m going to get through any kind of analysis of this thing without resorting to rank superlatives. So if you’ll indulge me, let’s run ‘em down right up front:

(1) Padilla is the single most significant stand that the Court has taken on behalf of the rights of non-citizens in my lifetime. It will provide a massive, widespread, immediate benefit for innumerable deserving¹ people, including many of my clients.

(2) Padilla has created the single most burdensome obligation that the Court has ever imposed upon the criminal defense bar.

(3) I have never had such thoroughly mixed reservations about a case that I should otherwise love so much.

Okay, deep breaths. Let’s break this down:

(1) What does Padilla mean for non-citizens?

As of today, any non-citizen present in the United States who enters a guilty plea to a criminal offense which will carry a “truly clear” consequence of future deportation (and, arguably, other immigration consequences) who is represented by counsel must be advised by their attorney of this consequence. In cases in which the immigration outcome is less certain (as it is in many, if not most criminal cases), counsel is obligated to advise that the plea may carry a risk of deportation. Non-citizens who have not been properly advised of these risks and/or consequence may be eligible to withdraw their pleas based upon ineffective assistance of counsel.²

(2) What does Padilla mean for criminal defense attorneys?

In a perfect world, the Supreme Court would have mailed courtesy copies of this decision to every criminal defense attorney in the United States firmly affixed to a very large bottle of J+B. Once the full implications of this ruling really start to sink in, most of them will be needing a stiff pour.

Simply put: Padilla requires the defense bar to learn a lot about federal immigration law, and very quickly. Imagine a baker who specializes in artisan breads arriving in the kitchen one morning to find that his boss has amended his job description to include the creation, production, and presentation of French pastries—with no concomitant training opportunities or salary increase. It’s kind of like that.

As of today, criminal defense attorneys throughout the United States are now required—upon pain of Constitutional ineffectiveness—to be conversant in all 33 definitions of the term “aggravated felony” outlined in the Immigration and Nationality Act as well as specific federal interpretations of each of these definitions and applications of these definitions to their local jurisdiction’s criminal statutes [PDF]. They will be expected to know exactly what does and does not constitute a “conviction”—a term which, under federal immigration law, is defined far more broadly than its equivalent in many states, including Massachusetts—and to have a working knowledge of how a client’s past criminal record may combine with the plea in question to raise a serious risk of deportation. They will be expected to have a working knowledge of “crimes of moral turpitude,” and to be able to articulate the legal and semantic differences between inadmissible and deportable offenses. They should probably learn a bit about mandatory detention [PDF] and the mechanics of immigration removal proceedings. This is, needless to say, a lot to learn at once, and replete with moving parts.

If you’ll allow me one more analogy: Padilla has drafted criminal attorneys to serve in the ranks of the armies of Immigrationland. It may not be what most of them signed up for, but they now have their marching orders and it seems that “theirs is not to make reply / theirs is not to question why.”

(3) What else is going on here?

Plenty. I’ll have more to say about this shortly, but here are a few immediate thoughts:

Padilla is kind of an interesting counterpoint to last year’s monumental Sixth Amendment ruling in Melendez-Diaz v. Massachusetts, in which the Court held that the government must introduce live supporting testimony from the chemist responsible for the analysis of a controlled substance before evidence of that substance may be used against a criminal defendant. Where Melendez-Diaz has caused massive systemic migraines for prosecutors and law enforcement, Padilla will now impose what I have to assume will be a comparable burden of time and resources upon the defense bar. In both cases, of course, the Court has been suspiciously quick to claim that these two sweeping, transformative decisions really won’t “commence [a] parade of horribles” (Melendez-Diaz) or “open the floodgates” (Padilla).

This is also the first time of which I’m aware that the Supreme Court has gone as far as to require defense counsel to be aware of a “collateral consequence” of a guilty plea. For as much as I hate slippery-slope arguments, there is a serious question here as to potential future challenges. What if a defendant isn’t informed that his conviction will leave him ineligible to receive federal student loan assistance? To serve in the U.S. military? To obtain a real estate license, or sit for a state bar exam? Do we need to provide each defendant with a checklist for these and every other possible potential future foreseeable consequence?

For as much as I wholeheartedly agree with Justice Stevens’s contention that the possibility of a lifetime of exile from the United States is perhaps the most serious collateral consequence imaginable, the fact remains that it is still a federal issue which is entirely separate from state-based criminal systems. Just a thought.

Again, though, these are all initial impressions within hours of first reading this decision. I’ll likely have more to say—including Massachusetts-specific analysis—once I’ve digested this thing a bit more, but my overall response (as an immigration practitioner, as least) is a feeling that justice has been done here. Despite my quibbling above, I fully agree with Justice Stevens:

Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.

1. And, arguably, not-so-deserving… [↩]
2. Far more will likely be limned from this 18-page opinion in the coming years, but I think that this is a pretty fair summary of the basic holding. [↩]

Immigration Appeals, U.S. Supreme Court

There’s something kind of inherently dodgy about sequels. They’re usually nothing more than a quick buck and a cheap laugh, the faint shadow of what we enjoyed so much the first time around. For every beloved classic that really captures what worked in the original (Terminator 2, The Godfather: Part II, The Empire Strikes Back), Hollywood cranks out vaults of best-forgotten throwaways (see¹ every other Terminator sequel, The Godfather: Part III, The Phantom Menace²).

The Supreme Court’s 5-4 decision in Melendez-Diaz v. Massachusetts [PDF] was released earlier today as a followup to its critically-acclaimed performance in Crawford v. Washington. To the surprise of pretty much no one I know who cares about these things, Justice Scalia’s majority opinion came down almost exactly as I predicted it would a few days ago. (Just a warning: The following might get a little confusing if you haven’t read that post, or any other review of the issues in this case.)

As sequels go, Melendez-Diaz is a formula job. Scalia revisits everything that we loved about Crawford, and once more finds that the Confrontation Clause was intended to mean exactly what it says: a criminal defendant “shall enjoy the right… to confront all witnesses against him.” As of today, this is true even—or perhaps especially?—if those witnesses happen to be wearing lab coats. Melendez-Diaz has emphatically held that evidence of the chemical composition of an alleged controlled substance may not be introduced without the supporting live testimony of an analyst responsible for this testing. It’s a good result, and I’m happy to see it.

I don’t know about you, but I hate it when sequels re-cast major characters.³ While Scalia reprises his Crawford role as the dorky-but-likeable strict constructionist leading man here, Thomas⁴ plays the plucky swing voter, and Kennedy⁵ serviceably captains a grumbly dissent that is a full ten pages longer than the majority opinion. It’s all kind of confusing.

Justice Thomas, still riding high from recent cases in which he was the lone voice in favor of both gutting the Voting Rights Act and giving the government the green light to probe the underpants of our nation’s 13-year-old girls on a whim⁶, filed a one-page concurrence in which he basically agreed with Scalia on every point (nothing new there), but also made it clear for the record that he only supports Crawford as it relates to “formal testimonial” statements.⁷

This was more the kind of thing that I was expecting from Chief Justice Roberts⁸, but Roberts joined Kennedy’s rambling 33-page⁹ dissent together with Alito and Breyer. I would dig into this dissent more, but I’m just not up to it right now, mostly because: (1) caselaw, like history, is written by the winners and (2) I don’t like it very much. While I do agree that Scalia has overstated the efficacy of the so-called “burden-shifting statutes” used in many states, I was otherwise entirely unpersuaded by Kennedy’s arguments. I will note only that the idea that 21st-century chemists are in any way comparable to 18th-century copyists simply doesn’t pass the laugh test, and that I think that he otherwise vastly overstates both the import and the potential impact of this decision even as he indulges in an unbecoming display of haughty pragmatism. Besides, lengthy contextual examinations of what the Framers were thinking at any given moment is the kind of thing that really only works for one of the Court’s current members—and he’s on the other side of this one.

It’s really unfortunate that a case of this significance had to be so closely divided, but it is especially interesting to see who ended up where. The Court’s three (arguably) most “liberal”¹⁰ justices have teamed up with its two avowed conservatives against four of its most consistently moderate thinkers. Like so many Supreme Court-worthy cases, however, Melendez-Diaz presents issues that are far more important than the typical “conservative” or “liberal” distinctions with which the rest of the country has become so obsessed. As Walter Dellinger just noted in a Slate post, these two unlikely combinations of justices can be viewed as “legalists” (what does the law say?) versus “pragmatists” (what will this result achieve?), and Justice Sotomayor can’t necessarily be counted upon to reliably fall upon either side of this split if and when she takes the bench.

Well, anyway. This case may not be as much fun to talk about as today’s Redding “strip-search” ruling, but I’m fairly confident that it will ultimately prove to be far more important, both here in Massachusetts and elsewhere.

1. Or, better yet—don’t. [↩]
2. Yeah, I know: it’s a prequel. So maybe I’m assuming that the Supreme Court and Star Wars attract totally different packs of fanboys. Throw me to the Sarlacc. [↩]
3. E.g., Katie Holmes’s replacement by Maggie Gyllenhaal during the course of the Batman reboot. It’s a small thing, I know, and I actually like Gyllenhaal better—but still: Why? [↩]
4. Yeah, that Thomas. [↩]
5. Yeah, that Kennedy. [↩]
6. Seriously, I wish that were just a stupid joke. Today’s wantonly authoritarian dissent in Redding is one of the single scariest things I’ve ever read in a Supreme Court opinion issued in my lifetime. [↩]
7. Read: Barely agrees with Crawford at all. [↩]
8. This was, after all, the essence of the position taken by his mentor William Rehnquist in his Crawford concurrence, and it is otherwise fairly consistent with Roberts’ brand of moderate conservatism [↩]
9. Including not one, but two appendices full of [mostly pre-Crawford] cases that this decision will allegedly disturb or overturn… [↩]
10. This is relatively speaking: I continue to maintain that there have been no true “liberals” on the Court in my lifetime. [↩]

Criminal Appeals, U.S. Supreme Court, massachusetts

I had always thought that the Supreme Court’s ruling in New York v. Belton, 453 U.S. 454 (1981) was a little much. As of today, I guess they’ve finally agreed with me.

Those who have had the pleasure of an American criminal procedure course will remember Belton as the source of the “search-incident-to-arrest” corollary to the “automobile exception” to the Fourth Amendment’s general rule against unwarranted searches and seizures. Simply put, the Belton rule permits the passenger compartment of a suspect’s vehicle to be searched on-site at any time after a lawful arrest without a warrant.

This exception is usually justified on the grounds of officer safety, and that’s understandable: we want to be sure that police officers are able to quickly locate and lock down any weapons that might be at hand during the course of an arrest. But Belton’s unnecessarily broad wording has openly permitted searches that could never reasonably be explained that way. Realistically, unless you’ve collared yourself a Jedi,¹ there’s really no conceivable way that a handcuffed suspect locked in a police cruiser could possibly get to anything in his car that could be used to hurt you, and that seems to be the point at which most of these searches are performed. The “search-incident-to-arrest” element of the automobile exception has always seemed like a problem disguised as a solution to me, and a whole pile of academics and other people far smarter than me have been trying to get the Court to re-examine it for decades.

In a closely-split decision today in Arizona v. Gant (No. 07-542)(PDF), Justice Stevens² has all but overruled Belton.

The facts aren’t all that important, but I should note that the defendant had been arrested for nothing more than driving on a suspended license and was safely in custody by the time that his car was searched and a small quantity of cocaine found. During the course of the hearing on the motion to suppress brought prior to trial, the arresting officer assured the Court that the search had been conducted under these circumstances “[b]ecause the law says we can do it.”

Well, not anymore. Stevens has upheld the Arizona Supreme Court’s holding that this search was un-Constitutional, and that Belton was significantly overbroad. Here’s my favorite part:

The experience of the 28 years since we decided Belton has shown that the generalization underpinning the broad reading of that decision is unfounded. We now know that articles inside the passenger compartment are rarely“within ‘the area into which an arrestee might reach,’” and blind adherence to Belton’s faulty assumption would authorize myriad unconstitutional searches. The doctrine of stare decisis [Latin, I believe, for "What part of that last ruling didn't you understand?"] does not require us to approve routine constitutional violations.

Nice!

Best I can tell from my first read of Gant, Stevens has limited Belton to situations in which the suspect either has access to his vehicle at the time of search and/or the search would yield evidence directly relating to the crime for which the suspect was arrested.

Sounds about right to me, but where does this leave us? As Scalia grumbles in his mostly-reasonable concurrence, Stevens isn’t exactly overruling anything³ but only cinching Belton up a few notches. I kind of agree with Scalia⁴ that the best course of action would really be to ditch (rather than refine) Belton and its progeny altogether and go with an alternative rule: vehicle searches after arrest may only be conducted when seeking evidence toward the crime for which the arrestee had already been arrested. This logic in this is kind of inarguable on its face: If an officer already had probable cause to arrest a driver for certain crimes,  why shouldn’t there be probable cause to search the same person’s immediate area after arrest for evidence⁵ of that crime? But I’m not totally sold on this, as it still has significant potential for abuse and is almost certainly motivated by Scalia’s well-known career hatred for the exclusionary rule.

But, still: good enough for now. Gant is an encouraging and long-overdue development in Fourth Amendment caselaw, and I’m happy to see it.

1. And if so: How? [↩]
2. Stevens sat out Belton, instead signing on to a concurrence that was obviously hesitant to endorse it. [↩]
3. The Alito/Roberts/et al dissent disagrees, arguing that there is “no doubt” that Gant overrules Belton, and dissents almost entirely on stare decisis grounds. [↩]
4. As combinations of words go, I’ve probably uttered this phrase about as often as I have “Please pass the mushy peas, because they are delicious.” [↩]
5. Drugs and/or guns, 95% of the time [↩]

Criminal Appeals, U.S. Supreme Court

If you need one more reason to take pride in the genius of the American democratic process today, keep in mind that Supreme Court Chief Justice Roger Taney, the last person to administer the Presidential oath of office upon the Lincoln Bible on which Barack Obama will place his hand today, believed that:

…it is too clear for dispute that the enslaved African race were not intended to be included [in the phrase "all men are created equal"], and formed no part of the people who framed and adopted this declaration, for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted, and instead of the sympathy of mankind to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.

In Dred Scott v. Sandford, 63 U.S. 393 (1857), now known as one of the worst rulings in Supreme Court history, the Taney Court was asked to decide whether African slaves and their descendents could ever become citizens of the United States. The answer was an angry, Ted-Stevens-style, “NO!” After all, wrote Taney, our Founders found Africans to be:

“…beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.”

Furthermore, Taney believed that it was essential to the health of the nation that the same Constitutional rights that applied to “real” Americans be forever witheld from Africans and their descendents because:

[Citizenship] would give to persons of the negro race… the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color [in slave states], both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.

In an unfortunate attempt to answer the “slavery question,” Dred Scott openly vindicated the “property rights” of slaveowners, vitiated the Missouri Compromise, and forcefully precluded the possibility that African slaves and their descendents could ever call themselves “African-Americans.” It remains one of the handful of Supreme Court opinions that everyone can now agree was just a really bad idea.

Although Barack Obama is the first incoming President to take the oath from a Chief Justice to whose appointment he was opposed, John Roberts is no Roger Taney. Justice Taney was an open supporter of the “rights” of slaveowners to their human “property,” and an avowed enemy of Abraham Lincoln. (Scholars still dispute whether or not Lincoln actually attempted to issue a warrant for Taney’s arrest several months after he took office.) Dred Scott had been in effect for four years by the time that the two men faced each other on the steps of a Capitol built on the backs of slave labor with this Bible between them, and a war that would truly solve the “slavery question” once and for all of American history was only months away.

Dred Scott was legally superseded by the passage of the 13th and 14th Amendments to the U.S. Constitution after the Civil War which granted full citizenship to “all persons born or naturalized in the United States,” but it was never formally overruled by the Court.  With the conclusion of today’s ceremonies, however, one singular man has proven that Dred Scott really is as dead, ugly, and rotting as Taney himself.

Happy Inauguration Day!

U.S. Supreme Court, stupid laws Bad law, Supreme Court