In the 2010 landmark decision Padilla v. Kentucky, the Supreme Court held that the Sixth Amendment right to counsel demands that criminal defense attorneys inform their clients of adverse immigration consequences that may flow from a guilty plea. Although over a decade has passed since Padilla, astonishingly little is known about how public defense systems have incorporated this watershed decision on the ground. This Article presents the first empirical study of representation by public defenders in the post-Padilla era. By researching Padilla’s implementation in California—the state with the largest immigrant population in the nation and a longstanding commitment to public defense—this study shows how immigration expertise has been provided to indigent defendants and identifies weaknesses with the current delivery system.
Our results reveal a patchwork system in which each county in California has created its own approach to immigration advising. Exhibiting efforts at compliance, most large counties with institutional public defender offices have embedded immigration experts within their offices and reshaped attorney understanding of adequate pre-plea advisals and plea-bargaining practices. At the same time, however, many other counties have languished: They have not hired immigration experts, developed county protocols for immigration advising, or implemented immigration law training for their attorneys who accept indigent court appointments. The urgency to create a workable Padilla delivery system is particularly acute in California’s small and rural counties, which generally have not established an institutional public defender office and instead have relied on a county-funded contract system for appointing defense counsel. The lack of state funding for public defense in California contributes to these problems, as does the fact that some county defender systems have been slow to restructure their existing defense services to strengthen their immigration advising and defense. Based on these findings, this Article concludes by offering policy recommendations for how to improve the representation of immigrants in California. These insights are also relevant to other public defender systems throughout the country that are struggling with similar issues.
Appendix E of the Article is available online here.
* Ingrid Eagly is a Professor of Law, UCLA School of Law. Tali Gires is a Criminal Defense Attorney at Still She Rises in Tulsa, Oklahoma. Rebecca Kutlow is a Litigation Fellow at Van Der Hout LLP in San Francisco, California. Eliana Navarro Gracian is a Skadden Fellow at the Migrant and Immigrant Community Action Project in St. Louis, Missouri.
We thank participants in the Southeastern Association of Law Schools Annual Conference, the Migration & Citizenship Workshop, the Temple University Beasley School of Law and UCLA School of Law Faculty Colloquiums, the ABA-AALS Academy for Justice Criminal Justice Roundtable, and the CINETS Global Borderlands Conference, as well as Emma Andersson, Ahilan Arulanantham, Rose Cahn, Eisha Jain, Andrés Dae Keun Kwon, Galit Lipa, Margaret Love, Graciela Martinez, Lindsay Nash, Sunita Patel, Talia Peleg, Jenny Roberts, Yolanda Vázquez, and Ronald F. Wright for helpful comments at various stages of this project. We are also grateful for the support this project received from Benjamin Nyblade and Henry Kim of UCLA School of Law’s Empirical Research Group, Kathy Brady of the Immigrant Legal Resource Center, and leaders of the California Public Defenders Association. Funding for this Article’s study was provided by a research grant from the Promise Institute for Human Rights at UCLA School of Law. Jenna Finkle, Kevin Gerson, Caitlin Hunter, Lynn McClelland, Sarah True, and the staff of the UCLA Hugh & Hazel Darling Law Library provided valuable research assistance. Finally, we thank the editors of the Stanford Law Review, especially Lyndsey Nicole Franklin and Olivia Glass, for their superb editorial assistance.