In the month of March, not only do we get to witness the blooming of breathtaking wildflowers that are so unique to Texas, but we also have the opportunity to reflect on the Sixth Amendment right to counsel and the way it impacts different communities, especially those who are not citizens of the United States. I mention this because March commemorates two significant cases that revolve around the Sixth Amendment: Gideon v. Wainwright (1963)1 and Padilla v. Kentucky, 599 U.S. 356 (2010).2
The Gideon case, a turning point in the interpretation of the Sixth Amendment, established that the right to have the assistance of an attorney is a fundamental right essential to a fair trial. This was a significant departure from the previous understanding, which limited the application of the Sixth Amendment right to counsel to federal court trials.
Gideon was charged with allegedly entering a poolroom with the intent to commit a misdemeanor in Florida. Despite his request for an attorney, the court initially denied it, as Florida only provided appointed counsel for capital offenses.
After carefully analyzing the caselaw, the U.S. Supreme Court overruled Betts v. Brady,3 which held that the Sixth Amendment applies only to trials in federal court.In Gideon, however, the court said that “any person brought into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him.”4 In the United States, said the Supreme Court, states’ and the national constitutions have given great importance —from the beginning—to procedural and substantive safeguards to guarantee fair trials before impartial tribunals in which every person stands equal before the law. These safeguards can only be realized if everyone obtains a competent lawyer, regardless of their ability to pay.
In Texas, the right to counsel is established, among others, in the Texas Constitution (article 1, section 10) and the Texas Code of Criminal Procedure (article 1.051). The latter says that when individuals cannot afford legal representation, they are entitled to have an attorney appointed to represent them in any adversary judicial proceeding that may result in punishment by confinement. This provision outlines a timeline within which an attorney should be appointed, further protecting the individual’s right to a promptly appointed counsel.
In Padilla v. Kentucky, the U.S. Supreme Court had the opportunity to analyze the Sixth Amendment in the context of individuals who are not citizens of the United States.
Padilla, a 40-plus-year lawful permanent resident of the United States and Vietnam War veteran, was charged with transporting marijuana in his tractor-trailer in Kentucky. His attorney counseled him to accept a plea deal and said he “did not have to worry about immigration status since he had been in the country so long.” Padilla relied on his attorney’s incorrect advice and accepted the plea deal. Padilla sought post-conviction relief and argued that he would have insisted on going to trial if he had not received incorrect advice.
In Padilla, the Supreme Court answered whether the Sixth Amendment required Padilla’s attorney to inform him that his guilty plea would ultimately lead to his removal from the United States. The court found that a “competent counsel” would have advised Padilla that his conviction would subject him to automatic deportation. This decision has had wide-ranging implications, setting a specific obligation for cases where an individual’s immigration status is at risk.
While immigration proceedings are civil “in nature,” the Supreme Court said that because the law has enmeshed criminal convictions and the penalty of deportation, it is hard to analyze them as completely separate matters. For many individuals, “deportation may be more important to the client than any potential jail sentence.”5 Furthermore, the Supreme Court acknowledged the existence of many professional norms that require criminal defense attorneys to counsel their clients on the risk of deportation.
Under Padilla, criminal defense attorneys must inform their clients about the potential risk of deportation associated with their plea.
Although this decision is a win for individual rights, it creates several challenges for counties (as they are in charge of appointing attorneys) and criminal defense attorneys. This is especially difficult for public defenders and appointed attorneys, because they may need access to certain resources in order to provide complete and accurate advice.
The Texas Court of Criminal Appeals has also rendered a decision on this matter. In the case of Ex parte Torres,6 the court ruled that simply advising a client to consult with an immigration attorney and mentioning the possibility of deportation is insufficient. Instead, the court held that when the consequences of a guilty plea include automatic deportation, an attorney must provide accurate legal advice about the “truly clear” consequences, as required under Padilla.
Texas is divided into 254 counties. However, as of November 2023, only about 75 counties have established “indigent” defense organizations. Out of these, there are 29 public defender offices and eight managed assigned counsel offices.7 It’s important to note that around 10 of these organizations, which cover 21 counties (mostly the major cities, including Travis County), have immigration attorneys on staff. These attorneys ensure that criminal defense attorneys comply with the duties outlined in Gideon and Padilla.
Specific initiatives, such as myPadilla,8 are working to bridge the gap and ensure that attorneys throughout Texas provide comprehensive and competent representation.
However, 61 years after Gideon and 14 years after Padilla, we are still working toward a system that supports criminal defense attorneys in providing quality representation for all.
ENDNOTES
1 Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963).
2 Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010).
3 Betts v. Brady, 316 U.S. 455, 62 S. Ct. 1252 (1942).
4 Gideon, 372 U.S. at 796.
5 Padilla, 559 U.S. at 1483.
6 Ex parte Torres, 483 S.W.3d 35 (Tex. Crim. App. 2016).
7 Texas Indigent Defense Commision, https://www.tidc.texas.gov/.
8 myPadilla, mypadilla.com.