SCOTUS Gives Second Chance to Resident Who Got Bad Plea Advice

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By Alisa Johnson

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.”

Subjective Calculation

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

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

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