The author of the following post about the Supreme Court’s decision in Jae Lee v. United States drafted an amicus brief in the case for several national immigrant rights organizations.
In 2010, Padilla v. Kentucky established that criminal defense lawyers must advise clients about the deportation consequences of a conviction, as part of their duties under the Sixth Amendment right to the effective assistance of counsel. Jose Padilla won in the Supreme Court because his trial lawyer erroneously informed him that he would not be deported after pleading guilty to drug trafficking because he had been in the U.S. for so long and had served in the military in Vietnam. However, Padilla’s case was remanded for a lower court determination of whether his trial lawyer’s incompetence caused him prejudice, since a defendant can win an ineffective assistance of counsel claim under the Court’s 1984 decision in Strickland v. Washington only by showing both attorney incompetence and prejudice.
Last week, in Lee v. United States, the Court considered the standard for proving prejudice, ruling in Lee’s favor in a 6-2 decision by Justice Roberts (Justices Alito and Thomas dissented). The Government conceded that Jae Lee’s trial lawyer failed to meet his duty under Padilla by assuring him that he would not be deported if he pled guilty to selling ecstasy. The only issue for the Court was the proper standard for proving prejudice when a defendant pleads guilty in a case involving strong evidence of guilt.
The Supreme Court has settled a dispute lingering in the lower courts since its decision seven years ago in Padilla v. Kentucky: If a criminal defendant’s decision to plead guilty resulted from his lawyer’s constitutionally deficient advice about the collateral consequences of conviction, what does he have to show to undo the plea and bring the government back to the bargaining table? The question before the Court in Jae Lee v. United States was whether a defendant facing deportation must be given a second chance to stay in the United States after bad advice from his lawyer led him to plead guilty, even though the odds of his winning at trial are low and he is likely to be deported anyway.
The government argued that no “rational” defendant in Lee’s position would have risked a longer prison term, that he therefore could not show that he was prejudiced by his lawyer’s bad advice, and that the plea should accordingly stand. Lee countered that “deportation after some time in prison was not meaningfully different from deportation after somewhat less time,” and that he would have taken his chances with the jury if he had had accurate advice about the consequences of pleading guilty. As the Court put it, he “would have rejected any plea leading to deportation in favor of throwing a ‘Hail Mary’ at trial.”
On June 23, the Supreme Court agreed that Lee should have another bite at the apple. In an opinion by Chief Justice Roberts, the Court held 6-2 that Lee had met his burden of showing that it would not have been “irrational” for him to reject the plea offer and go to trial, even though he would have been “almost certain” to lose.
The Court’s opinion is analyzed by Amy Howe at SCOTUSblog here. Justices Thomas and Alito dissented, and Justice Gorsuch took no part in the decision.
Last month the Wisconsin Supreme Court held in State v. Lemere that the Sixth Amendment does not require defense counsel to advise a client that a conviction for a pending charge of sexual assault could result in future commitment proceedings under chapter 980. The case could be appropriate for certiorari review in the U.S. Supreme Court regarding the scope of the Sixth Amendment right to counsel, since it reflects differing views in state high courts.
The Supreme Court of Georgia has extended the doctrine of Padilla v. Kentucky to a failure to advise about parole eligibility. In Alexander v. State, decided on May 11, a defendant sentenced to a 15-year prison term for child molestation sought to set aside his guilty plea on grounds that his defense counsel had not warned him that, as a recidivist, he would not be eligible for parole. The Georgia high court agreed that this failure constituted deficient performance under the doctrine of Strickland v. Washington, overruling its 1999 precedent holding that the Sixth Amendment did not require a defense lawyer to advise a client about this “collateral consequence” of conviction. The Georgia court distinguished its 2010 post-Padilla decision declining to find a warning by the court necessary, finding a clear constitutional distinction between defense counsel’s Sixth Amendment obligation to advise a client considering a guilty plea and the court’s due process obligation to warn a defendant in the same situation.
At the same time, the court declined to approve a lower court’s earlier extension of Padilla to sex offender registration, reserving for another day the question whether this consequence is “a drastic measure” that is “intimately related” to the criminal case. Most of the post-Padilla decisions involving parole eligibility have rested on the dubious pre-Padilla erroneous advice exception to the collateral consequences rule, an exception that the Alexander court firmly rejected.