Last spring, I wrote about Lee v. United States,[1] a case on appeal from the Sixth Circuit that was still pending before the Supreme Court at the time. Lee arose from a plea bargain entered into by Jae Lee, a lawful permanent resident who had moved to the United States from South Korea at age thirteen. Lee grew up in New York City, graduated from a business high school, eventually opened two successful restaurants in Memphis, Tennessee, and never once returned to South Korea. In 2008, Lee sold approximately 200 ecstasy pills to a confidential informant. Officials also found ecstasy and cash at Lee’s apartment. Shortly thereafter, a grand jury indicted Lee on one count possession of ecstasy with intent to distribute. On the advice of his lawyer, Lee agreed to a plea bargain that would have sentenced him to a year and a day in prison, with a deferred sentence of two months (allowing him to manage his restaurants over the holiday season). Unbeknownst to Lee, he had pled guilty to an aggravated felony, thereby rendering his deportation mandatory.
Lee maintained on appeal that he would have insisted on going to trial had he known that his plea agreement would render him deportable. Lee’s lawyer had repeatedly assured him that the plea bargain would not make him deportable. In an evidentiary hearing on Lee’s motion to vacate his conviction and sentence, Lee’s attorney “acknowledged that if he had known Lee would be deported upon pleading guilty, he would have advised him to go to trial.”[2] To this end, the government conceded that the attorney’s performance was deficient,[3] thus meeting one of the two prongs for ineffective assistance of counsel, set out in Strickland v. Washington.[4] Meeting the deficient performance standard was fairly straightforward, since the Court decided in Padilla v. Kentucky[5] that a defense attorney must inform her client of the potential deportation consequences of a plea bargain, or else her performance would be deficient.[6] The crux of Lee’s case, therefore, turned on the second factor set out in Strickland: whether the defense attorney’s deficient behavior prejudiced Lee.
The government argued that, since Lee was overwhelmingly likely to lose at trial (he faced strong inculpatory evidence), he was not prejudiced because he still would not have opted to go to trial. After all, the government reasoned, going to trial almost certainly meant a longer prison sentence on top of mandatory deportation. As I discussed in my previous post, the Sixth Circuit held that he was not prejudiced by his attorney’s incorrect advice,[7] as it would have been objectively irrational to risk a longer sentence at trial.[8] Lee appealed, and the Supreme Court reversed the Sixth Circuit.
Justice Roberts wrote the opinion for the majority. The government, Roberts noted, had asked the Court to adopt a per se rule that a defendant with no viable defense could not show prejudice from the denial of his right to trial.[9] Yet:
“[C]ommon sense (not to mention our precedent) recognizes that there is more to consider than simply the likelihood of success at trial. The decision whether to plead guilty also involves assessing the respective consequences of a conviction after trial and by plea . . . When those consequences are, from the defendant’s perspective, similarly dire, even the smallest chance of success at trial may look attractive.”[10]
To be sure, Roberts noted, a court should not “upset a plea” simply on the basis of a post hoc assertion by a defendant that she would not have pled guilty but for the attorney’s deficiencies. Instead, courts must do a case-by-case analysis and examine the “totality of the evidence.”[11] Here, deportation was the “determinative factor” for Lee.[12] Roberts concluded that the Court could not say that it would have been irrational for Lee to choose trial, even if other defendants in his position would have made a different choice.[13]
In Padilla, the Court recognized that deportation is a “particularly severe penalty.”[14] Perhaps it was not a huge leap for the majority in Lee to find that deportation is a severe enough consequence in the eyes of an individual defendant to make it completely rational to risk higher prison time for a chance at acquittal at trial. Admittedly, Roberts noted that the case dealt with “unusual circumstances,” hinting that the holding of the case might be cabined to very particular case-by-case situations. But couldn’t the Court’s rationale in Lee—that deportation is so harmful to an individual defendant that the defendant could rationally risk almost anything (i.e. more prison time) to avoid it—apply to other collateral consequences?
In addition to deportation, many other arguably extreme collateral consequences plague defendants going through the criminal justice system. Some of the most serious consequences include (but are not limited to): “exclusion from affordable housing programs,” ineligibility for Section 8 housing subsidies, revocation of certain professional licenses (even after misdemeanors), ineligibility for federal student loans, permanent bar on “receiving federally-funded cash assistance or food stamps” during a defendant’s lifetime, and “loss of custody of a child or irrevocable termination of parental rights.”[15] Whether one thinks deportation is better or worse then any of these consequences is irrelevant. The point in Lee is that deportation was the “determinative factor” for Lee, regardless of whether other defendants would have felt the same way. Indeed, the majority in Lee puts a lot of stock into an individual defendant’s determinative factor in her decision-making.
Yet while we might imagine many of these consequences influencing the decision-making process of different defendants, “[c]urrent constitutional law places few demands on defense counsel when it comes to collateral consequences.”[16] Aside from clear communication of plea offers (Missouri v. Frye[17]) and informing a defendant of potential immigration consequences (Padilla), failure to inform a defendant of other major collateral consequences will not trigger a constitutional violation.[18] Currently, only state courts have ruled that incorrect advice with respect to some of these other consequences can and does prejudice defendants in their decision-making processes. For example, in People v. Becker, a New York criminal court ruled that a defense attorney’s actions could amount to ineffective assistance of counsel when the attorney “provided incorrect advice to defendant regarding the effect that his guilty plea may have on his then-pending eviction proceedings in Housing Court.”[19] Additionally, in People v. Dodds, an Illinois appellate court held that the defense attorney’s incorrect advice to the defendant regarding the length of his sex offender registration requirement constituted deficient performance, and the defendant established prejudice by proving that he would have gone to trial.[20] Unfortunately, cases like these appear to be in the minority, and many courts hold that incorrect knowledge (or lack of knowledge of collateral consequences altogether) does not prejudice a defendant or amount to a deficient performance by the defense attorney.
The Court’s reasoning in Lee should be used to change this flawed principle. Individual views on the severity of punishment matter and affect a defendant’s decision-making when they are caught up in the criminal justice system. True, informing defendants of severe collateral consequences will not get rid of those consequences. But the information may incentivize more defendants to go to trial or to hold out for better plea bargains with charges that do not carry those collateral consequences (an issue that went undecided by the Court in Lee). The information may also prompt judges to be more mindful of the collateral consequences of the sentences they hand down. Or, if nothing else, the Court’s language in Lee should remind people of the lengths certain defendants might go to avoid certain collateral consequences. If a person is willing to risk substantially more prison time to avoid certain consequences, isn’t the collateral consequence worse than the primary punishment?
[1] Lee v. United States, 137 S. Ct. 1958 (2017).
[2] Id. at 1963.
[3] Id. at 1964.
[4] Strickland v. Washington, 466 U.S. 668 (1984).
[5] Padilla v. Kentucky, 559 U.S. 356 (2010).
[6] Id. at 374–75.
[7] Id.
[8] Lee v. United States, 825 F.3d 311, 316 (6th Cir. 2016).
[9] Lee, 137 S. Ct. at 1966.
[10] Id. (emphasis added).
[11] Id.
[12] Id. at 1967.
[13] Id. at 1968–69.
[14] Padilla, 559 U.S. at 365.
[15] McGregor Smyth, From “Collateral” to “Integral”: The Seismic Evolution of Padilla v. Kentucky and Its Impact on Penalties Beyond Deportation, 54 How. L. J. 795, 824–25 (2011).
[16] Brian M. Murray, Prosecutorial Responsibility and Collateral Consequences, 12 Stan. J. Civ. Rts. & Civ. Liberties 213, 235 (2016).
[17] Missouri v. Frye, 566 U.S. 134, 145 (2012).
[18] Prosecutorial Responsibility, supra note 17, at 236–37.
[19] People v. Becker, 9 Misc. 3d 720, 728, 800 N.Y.S.2d 499, 505 (Crim. Ct. 2005).
[20] People v. Dodds, 2014 IL App (1st) 122268, 7 N.E.3d 83, 101–102.
