Should <I>Padilla</I> Be Retroactive?

Abstract

When the Supreme Court decided Padilla v. Kentucky in 2010, it declared that defense lawyers had a duty to inform criminal defendants what the removal consequences of pleading guilty could be, if those consequences were clear. The Padilla majority asserted that the decision would not open the “floodgates” to new claims of ineffective assistance of counsel. Yet if there has not been a flood of cases, there has certainly been a growth of confusion as courts have struggled to determine exactly how far and to whom the gates were opened — does Padilla only apply to criminal cases on direct review and to the behavior of defense lawyers going forward, or do offenders whose convictions were final before Padilla also receive its protection? The answer has split the federal circuit courts and state courts that have considered it, leading the Supreme Court recently to grant certiorari on this difficult issue. The Court’s jurisprudence, the purposes of post-conviction review, and the practical consequences point in various directions on the question of retroactively applying the Padilla rule. The divided arguments and the rule from a divided Court suggest that a divided approach might be the best way forward.