Back in March, I reviewed Lee v. U.S., which at the time was about to be argued before the Supreme Court. The case involves a nearly life-long U.S. permanent resident who pled to CDS possession with intent to distribute with the incorrect understanding that doing so would expressly avoid the possibility of deportation, when in reality it guaranteed deportation. The Defendant, Jae Lee, who also owned a restaurant (Let’s review: immigrant restaurant owner and drug dealer not named Gus Fring) and had deep connections to the U.S., had no defense and almost certainly would have been convicted and deported anyway. The government admitted ineffective assistance of counsel, so the only issue left under Supreme Court precedent – specifically Strickland v. U.S. – was whether the defendant had been prejudiced. That hinged on whether losing one’s ability to throw a Hail Mary and risk it at trial constituted prejudice.
This week, the court ruled in Lee’s favor, resolving a deep circuit split on the issue. (Also, “Circuit Split” should either be the name for the banana split at the Supreme Court cafeteria or the title of a rom-com where an appellate judge divorces and then falls back in love with an electrician). Chief Justice Roberts, writing for the entire Court except Thomas and Alito, stated that to an individual with deep ties to the U.S. and virtually no ties to his/her original county, risking a plea deal in order to hang onto a sliver of hope of avoiding deportation is perfectly rational. “But for his attorney’s incompetence, Lee would have known that accepting the plea agreement would certainly lead to deportation. Going to trial? Almost certainly.” (I’ll pat myself on the back here, since in my initial post about this case I said that “it’s the ‘almost’ part of ‘almost certain’ that is key.”). The Court also relied on the fact that Lee really did make it clear that his decision was truly based on the mistaken belief that the plea would avoid deportation. Because the attorney’s incorrect advise foreclosed Lee from making a rational decision as to whether to proceed to trial, Lee could make out his Strickland claim.
Justice Thomas, joined by Alito, dissented. Notably, Alito joined the entirety of Justice Thomas’ dissent except Thomas’ position that “the Sixth Amendment to the Constitution does not require counsel to provide accurate advice concerning the potential removal consequences of a guilty plea.” That is a staggering claim, and one in which only one sitting Justice seems to hold. The rest of Justice Thomas’ dissent centered on the fact that Lee had no reasonable chance at trial and was therefore not prejudiced — essentially, what the Sixth Circuit said. Justice Thomas believed that the majority announced a “novel standard” for constitutional ineffectiveness of counsel claims; if there’s ever a way to ensure a Justice Thomas dissent, just say the words “novel” and “constitution” in the same sentence.
The case shouldn’t have too many doctrinal implications, but it does make clear that prejudice in Strickland cases can include being denied an understanding of the consequences of a plea versus a trial, beyond simply pleading guilty. As the Court stated, “[t]he 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.” That’s ultimately the takeaway from this case.
Finally, what will actually happen to Lee now is an open question. A new trial will soon be ordered, and the case could go to trial, where the overwhelming odds are that Lee will be convicted and then deported. Or, the government could decide to offer a plea to a reduced charge without the possibility of deportation. Lee voluntarily chose to remain in U.S. detention for six additional years after serving his one-year sentence rather than accept deportation, and so at this point he has already endured a lengthy prison term. It is reasonable for the government to simply offer time served on a reduced charge not carrying the possibility of deportation.