For the professional edge in your day-to-day practice, rely on the most timely, objective reporting on significant developments, trends, and emerging patterns in criminal law today—Criminal Law...
A defendant who received wrong advice from his attorney about whether he’d be deported by pleading guilty to a drug charge can show he was prejudiced by it, the U.S. Supreme Court ruled June 23 ( Jae Lee v. United States , 2017 BL 216471, U.S., No. 16-327, 6/23/17 .
Jae Lee could still show prejudice despite the near certainty of conviction and greater sentence had he gone to trial, the court held.
“In the unusual circumstances of this case,” the defendant “adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation,” Chief Justice John G. Roberts wrote for the 6-2 majority.
It was 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.
Lee came to the U.S. as a child 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.
He took the plea. But his counsel had been wrong—deportation was a mandatory consequence.
The government conceded that Lee received ineffective assistance but argued that in light of his near-zero chance of acquittal, even with accurate advice he would not have risked going to trial and receiving a harsher prison sentence. Therefore he could not meet the standard of prejudice in this type of case, that there was a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”
Under Lee’s circumstances, deportation was the most important factor in his decision to accept or reject a plea deal and “deportation after some time in prison was not meaningfully different from deportation after somewhat less time,” the court said.
The appropriate analysis looks at “what an individual defendant would have done,” the court said, and therefore “the possibility of even a highly improbable result may be pertinent to the extent it would have affected his decisionmaking.”
“We cannot agree that it would be irrational for a defendant in Lee’s position to reject the plea offer in favor of trial,” the court said. “But for his attorney’s incompetence, Lee would have known that accepting the plea agreement would certainly lead to deportation. Going to trial? Almost certainly.”
“Not everyone in Lee’s position would make the choice to reject the plea. But we cannot say it would be irrational to do so,” the court said.
Lee was “plainly better off for having accepted his plea” and “the Court in Strickland expressly foreclosed relying on the possibility of a ‘Hail Mary’ to establish prejudice,” said Justice Clarence Thomas, dissenting and joined by Justice Samuel A. Alito Jr.
Justice Neil Gorsuch took no part in the consideration of the case.
“Chief Justice Roberts’ thoughtful and clear opinion leaves no doubt: our criminal justice system recognizes that it’s reasonable for an immigrant to risk even lengthy imprisonment in order to have a chance to stay in the United States. That’s not a liberal or conservative ruling; it’s a common-sense recognition of how important it is that people be secure in where they live,” Mark C. Fleming of WilmerHale told Bloomberg BNA. Fleming participated in an amicus brief for immigrants rights groups in support of Lee.
The Justice Department did not return Bloomberg BNA’s request for comment.
To contact the reporter on this story: Alisa Johnson in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: C. Reilly Larson at email@example.com
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)