This morning, the Supreme Court is set to hear two cases that concern the Sixth Amendment right to effective assistance of counsel.

In the first, Padilla v. Kentucky (08-651), the Court will consider whether that right extends to advice regarding the immigration consequences of a criminal conviction. The petitioner, Honduras-born Jose Padilla, had been a legal resident of the U.S. for nearly 50 years when he was arrested in Kentucky and charged with a non-violent drug offense. When considering whether to accept a plea bargain, Mr. Padilla was told by his lawyer that he “did not need to worry” about being deported if he pleaded guilty because he had been in the U.S. for so long. This advice, however, was blatantly incorrect: because of the nature of his offense, Mr. Padilla faced automatic deportation as a result of his guilty plea. Mr. Padilla has claimed that he would never have pleaded guilty had he been properly informed of the deportation consequences.

The Kentucky Supreme Court rejected Mr. Padilla’s claims, ruling that the Sixth Amendment right to effective assistance of counsel did not apply to advice concerning the immigration consequences of a guilty plea. Under the Kentucky court’s decision, not even clearly erroneous legal advice—like the advice Mr. Padilla received—can serve as the basis for a claim that a lawyer was so ineffective as to render his assistance unconstitutional.

Mr. Padilla has asked the U.S. Supreme Court to reject the Kentucky Supreme Court’s interpretation of the Sixth Amendment, which guarantees the accused in “all criminal prosecutions” the right to the effective assistance of counsel. Specifically, Mr. Padilla is asking the Court to reject the Kentucky Supreme Court’s holding that deportation is a “collateral consequence” of a criminal plea that is outside the scope of the Sixth Amendment’s guarantees, and that a claim of ineffective advice concerning such consequences therefore does not entitle a defendant to relief under Strickland v. Washington (1984). (In that case, the Supreme Court established a test that would grant relief to a defendant who can show that the performance of his lawyer fell below an “objective standard of reasonableness.”)

CAC has filed a “friend of the court” brief in Padilla providing additional weight and context to Mr. Padilla’s argument that the Kentucky court’s narrow reading of the Sixth Amendment does not comport with constitutional text and history, revealing how the Framers of the Fourteenth Amendment — through which the Sixth Amendment is “incorporated” against state action – explicitly sought to ensure that “no man, no matter what his color, no matter beneath what sky he may have been born, … shall be deprived of life, liberty, or property without due process of law.” If a non-citizen can be induced to plead guilty to a crime based on false counsel regarding the likelihood of removal from his home and family—a concern frequently more important to a non-citizen defendant than is a sentence of imprisonment—than the interests of due process are not served.

Also today, the Court will hear oral argument in Smith v. Spisak (08-724), in which the State of Ohio has urged the Court to hold that the U.S. Court of Appeals for the Sixth Circuit overstepped its authority under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) when it determined that the Ohio Supreme Court had incorrectly rejected a defendant’s claim of flawed jury instructions and ineffective assistance of counsel at his penalty hearing. (AEDPA allows a federal court to grant habeas relief to a person in state custody only if the state court adjudication of his or her claim “resulted in a decision contrary to, or involved in an unreasonable application of, clearly established Federal law.”) Frank Spisak was convicted of a series of shootings at Cleveland State University that took place in 1982. In his closing argument, Mr. Spisak’s defense lawyer told a sentencing jury that his client had no “good deeds” or “good thoughts,” recounted the terrible facts of the shootings in vivid detail, informed the jury that, even if they sentenced his client to death, he would be proud of them, and never once specifically asked the jury to find in favor of a sentence of life-imprisonment in light of the expert testimony that his client had serious psychological problems. The Sixth Circuit found this closing argument to be constitutionally ineffective, noting that the defense lawyer essentially acted as a second prosecutor in the case.

Though very different in nature, the Padilla and Spisak cases are illustrative of increasingly-recognized deficiencies in the public defender system in our nation, and of how our courts struggle to uphold defendants’ critical Sixth Amendment rights to effective assistance of counsel. These cases have the potential to be a revealing test of how broadly the Roberts Court views Sixth and Fourteenth Amendment protections of effective assistance of counsel and procedural fairness in state criminal proceedings.