Padilla v. Kentucky: The right of a defendant to be informed by counsel of collateral consequences of a conviction

On March 31, 2010, the United States Supreme Court handed down a 7-2 decision in Padilla v. Kentucky, ruling that a defense lawyer failed to provide his noncitizen client effective assistance of counsel under Strickland v. Washington when he did not warn him that he was almost certain to be deported if he pled guilty. The Court's ruling has opened up the door to an attorney's obligation to inform clients of collateral consequences of a conviction.  These collateral consequences not only include an affirmative duty to give correct advice about possible adverse immigration consequences, but also may include other collateral consequences of a conviction such as sex offender registration and residency requirements, loss of licenses, firearm possession bans, ineligibility for public housing or other benefits, the right to adopt or maintain other family relationships, and the risk of increased penalties in later prosecutions including risks such as Jessica's law enhancements.

A recent publication put out by the Office of Immigration Litigation of the Department of Justice on the immigration consequences of criminal convictions after the recent United States Supreme Court Padilla v. Kentucky decision is of particular importance to criminal defense attorneys.  Please refer to www.justice.gov/civil/oil/OIL_Padilla_Reference_Guide.pdf to review the publication in its entirety.

Juveniles now have a right to a jury trial

The court in In re L.M. reversed a 24-year old precedent holding that juveniles are not entitled to a jury trial. The Kansas Supreme Court recognized that changes to the juvenile justice system have eroded the characteristics that traditionally distinguished the juvenile code from the adult criminal system. Because the Kansas juvenile justice system has become more akin to an adult criminal prosecution, juveniles now have a constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the U.S. Constitution.

Crack-Powder Cocaine Sentencing Disparity Reduced

See article written by Jack King & Ivan J. Dominguez that was published in NACDL News in The Champion

On July 28, 2010, the House of Representatives passed the Fair Sentencing Act of 2010, the legislation that will help alleviate the crack-powder cocaine disparity.  The legislature reduced the disparity from 100:1 to roughly 18:1, making the sentence for distribution of a gram of crack roughly the same sentence as the distribution of 18 grams of powder. Federal drug sentences for possession and sale are based on the weight of the controlled substance.  For over 20 years, possession of 5 grams of cocaine base (crack cocaine), without intent to distribute, has triggered the same mandatory 5-year sentence as distribution of 500 grams of powder cocaine. The new legislation eliminates the mandatory minimum, so that a powder cocaine defendant no longer has to possess or sell 100 times the amount of cocaine to receive the same sentence as a crack cocaine defendant.  The Fair Sentencing Act of 2010 should help reduce the overrepresentation of minorities in the federal prison system, as powder cocaine distributors, who are mostly Caucasians, drew relatively reasonable sentences while crack dealers, who are mostly minorities, stayed in prison longer for what is a chemically identical form of the same drug.

Eyewitness Witness Jury Instruction Under Attack

In State v. Mitchell, the Kansas Supreme Court considered whether a jury should be instructed to give special consideration to witness certainty in determining whether an eyewitness' testimony is accurate. Scientific research in particular has shown that cross-racial identifications are less reliable. Attorneys should make a contemporaneous objection to PIK Crim. 3d 52.20 for eyewitness identification and should consider asking for expert testimony on the pitfalls of eye-witness testimony or move to suppress in-court identifications