Petty Offenses, Drastic Consequences: Toward a Sixth Amendment Right to Counsel for Noncitizen Defendants Facing Deportation (Alice Clapman, Cardozo Law Review, December 2011.)
This article considers whether Padilla might have implications beyond the question of what constitutes effective assistance of counsel, and specifically, whether Padilla might provide a basis for challenging current limitations on the right to appointed counsel per se. Part I describes the particular problem of unrepresented defendants facing charges that would make them deportable, both in terms of the recent expansion of criminal deportation and in terms of state limitations on the appointment of counsel. Part II sets out the judicial limitations on the Sixth Amendment right to counsel and critically explores how these limitations developed. Part III argues that the logic of Padilla supports a reexamination of the now-classical rule that defendants who do not face incarceration have no right to counsel. Finally, Part IV identifies and discusses some of the practical consequences of this argument.