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Supreme Court Expands Right to Effective Assistance of Counsel for Defendants Facing Deportation

The Sixth Amendment guarantees defendants the right to effective assistance of counsel during all "critical stages" of a criminal proceeding. In the context of plea negotiations, this means that criminal defense attorneys must convey plea offers to their client in a timely fashion and give adequate advice about the consequences of accepting or rejecting the offer. The United States Supreme Court previously held, in a case called Padilla v. Kentucky, that this duty extends to advice about the immigration consequences of entering a plea. In an opinion rendered last week, Lee v. United States, the Supreme Court held that bad advice about immigration consequences can support post-conviction relief, even in situations where the defendant did not have any reasonable hope of winning at trial.

The case involved a South Korean immigrant named Jae Lee who moved to the United States when he was thirteen-years old and had lived in the country for thirty-five years. The government charged Lee with possession of ecstasy: an "aggravated felony" under federal law, which, upon conviction, subjects non-citizens to mandatory deportation proceedings. Lee had no defense to the charges against him. While he expressed concerns about being deported, his criminal defense attorney (incorrectly) assured him that he could not be deported if he was convicted. As such, Lee pled guilty to the offense.

When a defendant wants to overturn a guilty plea based on their criminal defense attorney's ineffectiveness, they must not only show that the bad advice caused them prejudice (i.e., that they would have rejected the deal if their attorneys gave competent advice), but also that it would have been rational for them to reject the plea deal under the specific circumstances of their case.

The Supreme Court held that--at least in the context of a non-citizen facing deportation--going to trial without a bona fide defense may not necessarily be an irrational decision. To a defendant who has lived in the United States his entire adult life, even the smallest chance of success could look attractive when weighed against the threat of deportation. The Court found that but for his attorney's incompetence, Lee would have known that accepting a plea agreement would certainly lead to deportation, but that facing a trial would only almost certainly lead to deportation.

The Lee decision lays out a very realistic view of the decision-making process that defendants go through when faced with a plea offer. It also reaffirms that insurmountable evidence against a criminal defendant will not always insulate a guilty plea from post-conviction attack. The Supreme Court recognizes that a defendant has the right to be competently informed before waiving his right to a trial, even if the trial is one he is not likely to win.

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