Mikaela Wolf-Sorokin*, Liz Bradley** & Whitney Viets*** | 26.4 | Citation: Mikaela Wolf-Sorokin, Liz Bradley & Whitney Viets, Padilla’s Broken Promise: Pennsylvania Case Study, 26 U. Pa. J. Const. L. 1046 (2024).

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In 2010, the Supreme Court held in Padilla v. Kentucky that criminal defense attorneys have a constitutional obligation to advise noncitizen clients of the immigration consequences of a guilty plea in criminal court proceedings. Though it has been over a decade since the decision, little research has been done regarding Padilla’s implementation by defense counsel on a statewide level.  This Article provides findings from a case study on Padilla advising in Pennsylvania. Pennsylvania is unique because its state courts have interpreted Padilla narrowly and permit immigration advisals that would be deemed constitutionally deficient in other jurisdictions.  Pennsylvania also does not have a state-funded public defense system, which means standards for indigent representation vary by county.

Interviews with public defenders and prosecutors in Pennsylvania reveal significant variation in the scope of advice provided to noncitizens in criminal court proceedings and the willingness of district attorney offices to consider immigration status during plea negotiations.  Each Pennsylvania county has an individual method of identifying noncitizen clients, analyzing immigration consequences, warning clients of these adverse consequences, and negotiating with district attorneys.  The scope of advice provided to noncitizens and counsel’s understanding of their Padilla obligations vary considerably in both content and scope. Counties suffer from Pennsylvania’s systemic failure to provide adequate funding to public defense offices to ensure that they can effectively comply with Padilla—a problem that is especially salient in a state with limited postconviction remedies for those who receive deficient advice. Based on these findings, this Article offers various policy recommendations that would improve the criminal defense representation of noncitizens in Pennsylvania.  While these findings and recommendations are specific to Pennsylvania, they are relevant to nationwide research on Padilla’s impact and what can be done to promote immigration-conscious criminal defense advocacy.

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* J.D. Candidate in the class of 2024 at the University of Pennsylvania Carey Law School.

** Lecturer in Law with the Transnational Legal Clinic at the University of Pennsylvania Carey Law School and an Appellate Attorney at the Florence Immigrant & Refugee Rights Project.

*** Adjunct Professor of Law at the Charles Widger School of Law at Villanova University, Immigration Counsel at the Defender Association of Philadelphia, and a Staff Attorney at the Nationalities Service Center.