Jae Lee v. United States, No. 16-327 (decided June 23, 2017), represents another Supreme Court crimmigration case discussing the obligations and responsibilities of defense counsel toward non-citizen, alien defendants in criminal proceedings. In many ways, it does not alter much of the Strickland v. Washington, 466 U.S. 668 (1984), and Padilla v. Kentucky, 559 U.S. 356 (2010), landscape. Instead, it reinforces a lot of what we already know - that effective assistance of counsel implies proper advice as to immigration consequences of pleas, including whether one will face removal or deportation. What it does meaningfully add, however, is an analysis on how to demonstrate prejudice in such ineffective assistance claims. It refines one of the prongs of the original Strickland test.
Lee resided in the U.S. since the age of 13, and after 35 years of residence in the U.S., was ultimately convicted for possession of ecstasy with intent to distribute after he had entered a guilty plea due to his attorney’s erroneous advice that he will not be deported as a result of such plea. Unfortunately, Lee learned that he became convicted of an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B). In contrast to his attorney’s assurances otherwise, Lee would be subject to mandatory deportation because of his plea and resulting conviction.
Because there was no dispute or question as to the deficiency of this legal advice, the critical issue before the Supreme Court was what constituted prejudice as a result of such affirmative misadvice. In Lee’s case, there was such overwhelming incriminatory evidence that he likely would have been convicted, even if he exercised his right to trial, and even if he refused to plead guilty. In other words, the Supreme Court would refine the definition of prejudice in the Strickland two-part test for ineffective assistance of counsel. In Lee’s case, what prejudice is there really when a trial would likely still lead to a conviction? and thus, still lead to the inevitable result of mandatory removal from the U.S.?
The Supreme Court harkens back to Hill v. Lockhart, 474 U.S. 52, 59 (1985), for the unextraordinary proposition that the defendant can show prejudice by demonstrating a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”
Lee argued that he suffered prejudice by taking a guilty plea without the knowledge that it would lead to his removal, and had he knew that information, he would have proceeded to trial no matter what, no matter the evidence against him, or the chance of success, because it is not irrational for a non-citizen to risk additional prison time or a longer sentence following a trial, if it meant even a small chance at avoiding removal. The government argued that he could not establish prejudice where he has no viable defense and thus the denial of the right to trial is not prejudice.
The Supreme Court decision is monumental in that it recognizes the importance of the defendant’s decision making and the plea bargaining process. The Court observes that many factors influence whether a non-citizen defendant may want to proceed to trial, notwithstanding a poor likelihood of acquittal or success. In that decision making, a defendant may choose to proceed to trial because the particularly severe penalty of a conviction - here Lee’s deportation - is such a detriment that such an outcome is worse than conviction. It can also include a defendant’s personal choice that proceeding to trial is critical to him because despite evidence, he or she maintains his or her innocence as a matter of principle, or because he or she wishes for the opportunity that a jury hear his case. So long as that decision to proceed to trial is a rational one. As Hill v. Lockhart has always held, a defendant’s decision making does not depend solely on whether or not he or she is convicted, thus not solely on the fact of a likely conviction.
As a result, the Court emphasizes the all important point that when the stakes are dire and removal is on the line, the possibility of a highly unlikely or impractical result may still be relevant and pertinent to an individual’s decision making at the plea stage. That itself - the lack of such information during the plea stage - influences the voluntariness of Lee’s plea, and most significantly, prejudiced him because he could have prioritized the avoidance of removal through any means necessary, including pursuing a trial with a low chance of acquittal because the ability, chance, and opportunity to avoid removal is more important than prison time or actual conviction. Unlike other cases from the Court regarding ineffective assistance of counsel, this case is seminal as it highlights the importance of the plea itself, a defendant’s personal decision making, and how the determination of whether an individual suffered prejudice involves much more than the dispositive nature of a conviction.