Resource: Intimately Related to the Criminal Process: Examining the Consequences of a Conviction after Padilla v. Kentucky and State v. Sandoval

In 2010, the US Supreme Court held in Padilla v. Kentucky that effective assistance of counsel required that a criminal defense attorney provide affirmative advice for noncitizen clients who faced immigration consequences in their pleas or sentences.1 On March 17, 2011, the Washington State Supreme Court issued State v. Sandoval, which analyzed Padilla and found that counsel’s advice to his client “fell below an objective standard of reasonableness” when he downplayed the immigration consequences of his client’s conviction.2 While both of these cases deal specifically with the immigration advice for noncitizen clients, they provide a framework for analyzing what effective assistance of counsel means for criminal defense attorneys when providing advice on a sentence or plea bargain. This article will examine not only immigration but also other consequences that result from a criminal conviction in Washington. It will argue that instead of analyzing a consequence as direct or collateral, the court must now determine whether a consequence is intimately related to the criminal process or an integral part of the penalty. When found to be an integral part of the penalty, an attorney must give affirmative advice regarding that consequence. Finally, this article will examine those consequences that are traditionally termed “direct,” such as incarceration and supervision, and those that have been considered “collateral,” like employment, registration, and driver’s license restrictions. This article will look at what it means to give affirmative advice about these consequences and then provide some advice on what competent counsel should do when faced with a particular issue.