Padilla Problems


Just like in the novel “The Scarlett Letter”, a criminal conviction, even today, leaves a giant scarlet “A” on a person’s chest.  It may not be a physical letter “A” anymore, but a conviction can haunt you forever.  And like Hester Prynne’s infamous “A,” it can hurt you going forward, even areas that seemingly have nothing to do with criminal law.


In Padilla v. Kentucky, the US Supreme Court held that criminal defense lawyers have an obligation to not knowingly misinform their clients of certain collateral consequences of a criminal conviction.

Padilla dealt with the consequences of a conviction on one’s immigration status, but later cases from across the country have applied the rule to all sorts of situations.  Additionally, Padilla radically changed how defense lawyers should practice.  Criminal defense lawyers are now compelled to investigate non-criminal consequences of a conviction.  Many lawyers did this already, but Padilla now makes it mandatory.

Padilla is also a good reminder for people facing criminal charges to think about consequences beyond the courtroom.  So, for example, you should think about (or have your lawyer check) if a charge or conviction would impact:

  1. Your immigration status:  this is the issue in the Padilla case and it is probably the most common collateral consequence.  Many criminal convictions can result in deportation.
  2. Your driver’s license: this is a fairly obvious one, even to folks that have no experience in the criminal justice system, but losing one’s license is often a far worse punishment than the fines of a low level motor vehicle charge.
  3. Your job: it’s possible that a charge or conviction could impact your employment. Again, like the loss of license, this side effect of criminal entanglement that could be far worse than the sentence itself, especially in less serious criminal cases.
  4. Your pension: there are some pensions that are terminated or revoked when a person is charged or convicted of a specific kind of crime, and as such, prior to resolving a case, you should know if a plea or conviction after trial would erase years of hard work and saving.
  5. Your professional license: there a lot of different licensing agencies and lot of them have provisions involving the loss or suspension of a license upon being charged or convicted of a crime.  This might be even worse than losing a given job, it might make finding a new job impossible.
  6. Your housing: if you receive some form of housing assistance, a charge or conviction could impact your ability to continue receiving that assistance.
  7. Your disability or public assistance:  the same thing that happens with housing assistance could happen with disability or other forms of assistance.
  8. Your right to own or possess a firearm: certain charges and convictions can, under federal law, deprive you of your Second Amendment rights permanently.  You should be aware of this when facing criminal charges and trying to figure out what to do.

Before you resolve a criminal case, you should know what impacts it will have on you both directly and indirectly.  It is one thing to get a sentence for a mistake, it is an entirely different thing to walk out of court and be surprised when you lose your job because of that mistake.

Additionally, if you have already entered a plea or were convicted after trial and these consequences were not something your lawyer explained to you, you may, under limited circumstances, have the right to have your conviction set aside.  It doesn’t mean the case goes away—you essentially start all over—but it means you will be aware of the consequences the second time around.

If you are charged with a crime and need legal advice relating to anything, including collateral consequences like those listed above, contact me at:


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