Wednesday, March 29, 2017
At the Supreme Court argument yesterday in Lee v. United States, the Justices had some very practical questions about how criminal defense lawyers handle cases of clients charged with offenses that could lead to mandatory deportation, and the role of the courts, prosecutors and defense lawyers in obtaining appropriate outcomes. We have a few thoughts about these questions based on our respective experience in this field- one of us is an immigration professor who specializes on the intersection of immigration and criminal law, the other works for a nonprofit organization that has extensive and longstanding practical experience advising defense counsel about the immigration consequences of convictions and helping them negotiate pleas that are sensitive to clients’ concerns about deportation.
Question 1: Does a trial judge’s Rule 11-type inquiry serve the same function as effective representation by defense counsel?
At the argument, Justice Kennedy asked about the implications of the district judge’s Rule 11 inquiry into the plea. One important point that might not have been clear is that a judge’s rule 11 inquiry serves a very different function from the defense lawyer’s obligation and cannot cure a defense attorney’s failure to accurately advise a defendant about the immigration consequences of a plea. First, judges and defense attorneys play distinct roles in the criminal justice system and defendants properly rely on the advice of counsel irrespective of a judge’s warnings. Judges are neutral arbiters—the Fifth Amendment requires them to ensure that a defendant’s plea is voluntary. See Boykin v. Alabama, 395 U.S. 238, 242-44 (1969). Attorneys, by contrast, have a duty under the Sixth Amendment to marshal the law and the facts (including confidential ones) to advise clients whether proposed pleas are in their interests, as defined by their clients’ goals, and to negotiate a plea that meets the client’s objectives. Second, judges generally give boilerplate notifications about immigration consequences without regard to the defendant’s individual circumstances, or the best interests, of a defendant; they do not constitute advice about whether to take a plea in light of the facts of the case, the governing law, and the client’s goals. Third, when a defense attorney’s failure to accurately advise about immigration consequences (and in the Lee case – the lawyer’s affirmative misadvice) prevents the attorney from negotiating an alternative plea that eliminates or mitigates immigration consequences a judicial notification cannot cure the resulting prejudice. In a case such as Mr. Lee’s where defense counsel has assured the defendant that there are no immigration consequences, the most that the court notification accomplishes is to confuse the defendant, or worse yet, to solidify his misperception of the immigration consequences.
In Mr. Lee’s case, moreover, the judge’s inquiry was only about the possibility of deportation, not the actual consequence of Mr. Lee’s plea, which was mandatory removal. No one at the trial stage – judge, prosecutor, or defense lawyer – understood that Mr. Lee was entering a plea to an offense that would bar him from a hearing before an immigration judge that would look at all the facts of his case and whether he should be deported.
Question 2: What would have happened if someone like Mr. Lee had declined to plead guilty to the charged offense in his case?
There was confusion at the argument regarding what would happen if someone like Mr. Lee had declined to plead guilty to the charged possession with intent to distribute offense. Justice Ginsburg asked if Mr. Lee could have asked the judge to charge the lesser-included offense of possession. The answer is that Mr. Lee's trial attorney could have requested such a lesser-included charge and the judge could have agreed to it, i.e., the prosecutor does not unilaterally have to offer such a charge. This is in fact precisely what happened in an earlier Supreme Court case, Price v. U.S., 123 S. Ct. 986 (2003), where the defendant there did get such a lesser-included charge.
Moreover, Mr. Lee could have offered to plead to different offense(s) that could have subjected him to more prison time than the prosecution got for his possession with intent to distribute plea. For example, Mr. Lee could have offered to plead instead to a possession offense in combination with a felony accessory offense, or he could have offered to plead to multiple possession offenses, and been subject to more prison time, yet avoid mandatory deportation.
The possibility of such alternate possible plea dispositions belie the government’s claims at argument that there is no evidence that there was any possibility of a better plea for Mr. Lee that the prosecution would have accepted. Alternate pleas, such as those described above, would be supported by the facts alleged by the prosecution in the case, and could also satisfy any prosecution demand that Mr. Lee’s prison sentence not be reduced. Thus, the evidence does show that both the goals of the prosecution, and the paramount goal of someone like Mr. Lee to avoid deportation, could realistically be satisfied once all parties are properly informed regarding the immigration consequences of alternate possible dispositions of the case. See Padilla, 130 S. Ct. 1473, 1486 (2010) (“By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties … Counsel who possess the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation, as by avoiding a conviction for an offense that automatically triggers the removal consequence.”). Indeed, the reality is that when a defendant rejects an initial plea offer because it carries immigration consequences, further plea negotiation is an equally, if not more likely alternative to trial given that 97% of federal convictions and 94% of state convictions are the result of guilty pleas.
Question 3: What happens if the defendant wins his or her post-conviction motion and the case is reopened?
At the end of the argument, Justice Kennedy inquired about what would happen at a practical level if Mr. Lee won his case. This was a very important question, and is in fact the first question that criminal defense lawyers explore with a client before pursuing a post-conviction motion. At the outset of a Padilla post-conviction motion, attorneys advise immigrant defendants of the potential risks and rewards of winning such a motion. Should the motion be granted, the noncitizen is returned to his original position of facing the same criminal charges to which he or she had previously and illegally pleaded guilty. The reality of this means that he or she may have to serve a new and longer sentence (on top of the time already served) if convicted after trial. Noncitizens risk that every time they file such a motion. In many cases, however, particularly, where the defendant is represented by competent counsel, the parties are able to negotiate a plea bargain that achieves satisfactory outcomes for both parties. See Padilla, 130 S. Ct. at 1486. For the noncitizen, that would mean an immigration-neutral plea or one that at least mitigates the immigration consequences so that the noncitizen is still deportable, but maintains a chance to remain in the United States. For example, should Mr. Lee’s case be sent back to the trial court, his attorney may be able to renegotiate a plea to straight possession. If that were the outcome, Mr. Lee would still be deportable, but not automatically so. He would be able to apply for the relief of cancellation of removal, and an immigration judge would then be able to weigh the severity and circumstances of Mr. Lee’s conviction against all of his contributions and ties to this country to determine whether Mr. Lee should be allowed to remain here. It would give him a fighting chance to remain, which has always been his primary goal.
If Mr. Lee wins his case and his conviction is vacated based on ineffective assistance of counsel, his deportability will turn on the outcome of his criminal case. In particular, a critical question will be whether he is able to negotiate a plea (or obtain a verdict at trial) that preserves his eligibility for cancellation of removal. If he can, then the very sympathetic facts in his case can be examined by an immigration judge before he faces deportation.