Wednesday, May 12, 2010
We continue to try to gain an understanding of how a Justice Elena Kagan might approach immigration matters. We previously reported that, as Solicitor General, Kagan sided with the petitioner seeking judicial review of a motion to reopen in Kucana v. Holder. In Padilla v. Kentucy, Solicitor General Kagan filed an amicus brief on behalf of the United States urging affirmance of the Kentucky Supreme Court's denial of post-conviction relief. Here is the SCOTUS Wiki summary of the argument in the brief:
"The amicus brief filed by the United States in support of affirmance indicates that, because the majority of federal criminal prosecutions are resolved through guilty pleas, the outcome of the case will have direct implications for review of federal convictions. The United States agrees with Padilla that the Kentucky Supreme Court erred in holding that misadvice with regard to immigration consequences does not merit a Sixth Amendment analysis: although defense attorneys are under no obligation to advise defendants about the immigration consequences of a guilty plea, the United States asserts in its brief, an attorney who does provide such advice “has a duty to avoid doing so incompetently.” Because the decision to enter a guilty plea belongs to the defendant alone, and because incompetent advice (with regard to both direct and collateral consequences) might undermine this decision, affirmative misadvice with regard to immigration consequences may thus constitute a Sixth Amendment violation. However, the United States continues, the Strickland analysis requires both deficient performance and prejudice, and Padilla cannot meet the second requirement. Because any defendant faced with deportation can allege, after the fact, that his defense counsel’s advice prejudiced their plea decision, the U.S. argues, courts must apply Strickland’s prejudice prong “rigorously,” using an objective test – established by the Court in Roe v. Flores-Ortega (2000) - that finds prejudice only when “a rational defendant [would have] insist[ed] on going to trial.” Because “the evidence of guilt was overwhelming” in Padilla’s case, and because going to trial might have exposed Padilla to a longer sentence than he would have received after pleading guilty, Padilla could not “rationally” have opted to forgo a guilty plea and proceed to trial." (emphasis added)
The Supreme Court, in a 7-2 opinion by Justice Stevens, reversed. It found that Padilla had a Sixth Amendment right but did not rule on whether his right had been violated and whether Padilla had been prejudiced by the ineffective assistance in this case.