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87 Cornell L. Rev. 697 (2001-2002)
Effective Assistance of Counsel and the Consequences of Guilty Pleas

handle is hein.journals/clqv87 and id is 711 raw text is: EFFECTIVE ASSISTANCE OF COUNSEL AND THE CONSEQUENCES OF GUILTY PLEAS Gabriel. Chint & Richard W. Holmes, Jr.tt Because over ninety percent of criminal convictions result from guilty pleas, perhaps the most important service criminal defense lawyers perform is advising their clients whether to plead guilty and on what terms. Neverthe- less, virtually all jurisdictions hold that defense counsel need not discuss with their clients the collateral consequences of a conviction, such as consecu- tive rather than concurrent sentencing deportation, or even treatment as an aggravating circumstance in an ongoing capital prosecution. In this Arti- cle, Professor Chin and Mr. Holmes argue that this collateral consequences rule is inconsistent with the Supreme Court's decision in Strickland v. Washington, which held that ineffective assistance of counsel consists of performance below a minimum standard of competence and resulting prejudice. The ABA Standards for Criminal Justice and other lawyering guidelines require defense lawyers to consider collateral consequences, and many of the cases espousing the collateral consequences rule rely on pre- Strickland case law. However, this Article recognizes that because guilty pleas are indispensable to the criminal justice system, judges justifiably hesi- tate to destabilize them. In order to prevent a mass exodus from prisons, it recommends modifying the rule to conform with existing Sixth Amendment doctrine. INTRODUCTION .................................................... 698 I. THE COLLATERAL CONSEQUENCES RuLE AND EFFECTIVE ASSISTANCE ............................................. 703 A. The Collateral Consequences Rule .................. 704 B. Assistance of Counsel ............................... 709 C. Scrutinizing the Collateral-Direct Distinction ........ 712 t Interim Associate Dean for Faculty Research and Development & Rufus King Pro- fessor of Law, University of Cincinnati College of Law. LL.M., Yale Law School; J.D., Michi- gan Law School; B.A., Wesleyan University. E-mail: gchin@aya.yale.edu. Thanks to Jim Jacobs for inviting me to present this Article to the members of the N.Y.U. Law School Criminal Law lunch group; I appreciate his comments and those of Bonnie Baker, Paul Chevigny, David Garland, Randy Hertz, Steve Schulhofer, Ric Simmons, andJerry Skolnick at that meeting. I am grateful for helpful comments to George Fisher, to Margaret Colgate Love and my other colleagues on the ABA Task Force on Collateral Sanctions, and to the faculty of the University of Cincinnati College of Law. To Dean Joe Tomain I owe five thousand thanks. The authors occasionally prosecute or defend criminal cases. The views expressed herein are not necessarily attributable to any past, present, or future clients or employers. f Associate, Graydon, Head & Ritchey. J.D., University of Cincinnati College of Law; BA, Miami University. E-mail: rholmes@graydon.com.

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