Prison Over Deportation? SCOTUS Ponders Bad Plea Advice

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By Alisa Johnson

Chief Justice John G. Roberts cited several reasons at oral argument March 28 why a person might want to go to prison rather than be deported ( Lee v. United States, U.S., No. 16-327, 3/28/17 ).

At issue before the U.S. Supreme Court was how a court should assess prejudice from trial counsel’s failure to inform a defendant that deportation will be a consequence of a guilty plea.

It's already established that failure to inform a defendant of the immigration consequences of a plea constitutes ineffective assistance, but most cases of ineffective assistance require a showing of prejudice for relief under Strickland v. Washington: that it's reasonably probable the result would have been different if not for counsel's errors.

The U.S. Court of Appeals for the Sixth Circuit held that there could be no prejudice when the evidence indicated a very slim chance of acquittal in the absence of jury nullification.

Jae Lee came to the U.S. from South Korea in 1982 with his parents and has never been back. He is a legal permanent resident.

After he was charged with possession with intent to distribute ecstasy, his lawyer assured him that if he pleaded guilty he would not be deported, and that he would be deported if he insisted on going to trial and was convicted.

Rational Defendant?

John J. Bursch of Caledonia, Mich., who represented Lee, told the court the prejudice inquiry should start with asking if there’s “a reasonable probability the defendant, given all the objective circumstances, would have pleaded guilty,” which is the test the court set forth in an earlier ineffective-assistance case.

Next, Bursch said, a court should ask whether that was a rational thing to do.

“The court shouldn’t guess in close cases,” he said, adding that “courts have to do this balancing all the time.”

Justice Ruth Bader Ginsburg characterized the petitioner’s argument within the context of the right to a jury trial: he would have exercised his constitutional right if he had been properly informed. She added that that right exists regardless of whether exercising it is a rational choice.

Justice Anthony M. Kennedy said that a “rational defendant” rule “sounds almost like a jury question” in that it involves comparing the defendant’s ties to the U.S. with those to his country of origin.

He also said that the normal issue in an ineffective assistance case—what might have happened at a trial with different evidence and/or different arguments—is something judges “know how to do.”

He said Lee is asking courts “to assess the mindset of the defendant when when he or she makes the plea. That’s very different.”

Ginsburg said Lee is merely asking the court “to apply the test that this court says is applicable at the plea stage. Is there a reasonable probability, but for counsel’s error, defendant would not have pleaded guilty, but would have insisted on his right to trial.”

Bursch said the Sixth Circuit went wrong by looking only at the likelihood of success at trial instead of considering all the circumstances objectively.

He added that when, as in this case, “you’re talking about giving up any chance to stay in this country versus a nine-to 11-month diminution in the sentencing guidelines range,” it would be rational for anyone to take a chance on going to trial.

No Right to Serve Time

Eric J. Feigin, of the Department of Justice, Washington, arguing for the government, said that in this case there was nothing constitutionally competent counsel could have done to create a chance that the petitioner could have avoided deportation.

Roberts said that “there are many possibilities where it would make sense for him to want a longer prison sentence.” For example, he could have a serious medical condition that could be treated in a U.S. prison and maybe not treated at all if he were deported.

Feigin said that “that’s not the kind of thing that we consider to be prejudice for Sixth Amendment purposes.” Roberts added that in prison the defendant could have had visits with his children and maybe continued to have some role in running his businesses.

Feigin responded that “the premise that someone is entitled to counsel who will keep him incarcerated in the U.S. is not only contrary to anything the courts recognize under Strickland, but also contrary to our criminal immigration laws where incarceration in the United States is the penalty for reentry.”

Justice Stephen G. Breyer added that a person might face being murdered upon being returned to his country of origin. He wondered why the court shouldn’t take that into account.

To contact the reporter on this story: Alisa Johnson in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

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