'Crimmigration' and the Right to Counsel at the Border Between Civil and Criminal Proceedings

31 Pages Posted: 27 May 2014 Last revised: 9 Sep 2014

See all articles by Christopher N. Lasch

Christopher N. Lasch

University of Denver Sturm College of Law

Date Written: May 26, 2014

Abstract

The Supreme Court recently discovered, in its 2010 decision in Padilla v. Kentucky, what I have termed the “right to effective crimmigration counsel” — the right to effective advice concerning the potential immigration consequences of a criminal conviction. The decision was grounded in the Court’s recognition of a central reality of modern immigration law, the intertwining of the criminal and immigration law systems that scholars have labeled “crimmigration.” But Padilla stands somewhat uneasily at the border between civil and criminal proceedings. It is a criminal decision about the scope of the Sixth Amendment right to counsel. But Padilla is clearly more than a criminal decision, as it is rooted in the criminal justice system’s connection to the immigration justice system, which the Supreme Court has insisted (even in Padilla) is a civil regime.

In these pages, I attempt to map the future of this unusual decision. The questions I hope to answer here are these: Does the Padilla rule adequately serve the constitutional values that the Padilla decision recognizes? And if not, how should we move beyond Padilla to a rule or set of rules that will promote those constitutional values?

Keywords: immigration, right to counsel, Sixth Amendment, criminal procedure, due process

Suggested Citation

Lasch, Christopher N., 'Crimmigration' and the Right to Counsel at the Border Between Civil and Criminal Proceedings (May 26, 2014). 99 Iowa L. Rev. 2131 ( 2014), U Denver Legal Studies Research Paper No. 14-42, Available at SSRN: https://ssrn.com/abstract=2442124

Christopher N. Lasch (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States
303-871-6368 (Phone)

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