I was asked recently to consult on the immigration case of a detainee that was based upon a conviction for a controlled substance. The criminal defense lawyer had misunderstood the immigration consequences during the plea process and accepted a plea that categorically required removal, mistakenly believing that if the record of conviction remained unclear about the specific drug that was involved, the conviction would withstand such classification. Unfortunately for the client, the statute of conviction itself specified the drug, making removal almost inevitable. Phrased technically, because there was a categorical match between the statute of conviction and federal generic crime, there could be no opportunity to challenge removal using a modified categorical analysis based upon a divisible statute and an unclear record of the exact drug that was involved.
On March 21, 2012, in two new decisions, the United States Supreme Court extended the constitutional
powers of courts over plea negotiations of the parties, even those
conducted outside of the courtroom. With
these two new decisions, defense counsel's error seems more likely to
lead to a reversal of a criminal conviction than ever. But if the
client is removed in immigration proceedings before action can be taken
in the criminal case, it is uncertain how and where such a result could
be challenged, and if successful, what the appropriate remedy might be.
In Missouri v. Frye, 566 U. S. ____ (2012) , the defendant's lawyer neglected to communicate a favorable plea offer of a misdemeanor offense to the client that would have resulted only in a minimal sentence. As a result, the offer lapsed and the client plead guilty without a plea agreement to a felony with a much higher sentence.
The Supreme Court held that the Constitutional right to effective counsel extends to the negotiation of plea offers. "The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process . . . to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages." The Court observed that plea bargaining "is not some adjunct to the criminal justice system; it is the criminal justice system" and "the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant." Resting the decision on narrower grounds, the court announced that: "defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused."
Turning to the issue of prejudice, the court stated: "defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law." Thus, the inquiry requires "looking not at whether the defendant would have proceeded to trial absent ineffective assistance but whether he would have accepted the offer to plead pursuant to the terms earlier proposed." While the court agreed that the defendant would have likely entered the lapsed plea agreement, it remanded for a determination whether the the plea agreement would have been cancelled by the prosecution inasmuch as the defendant had been convicted of a subsequent offense after the plea had been extended.
In a companion case, Lafler v. Cooper, 566 U.S. ____ (2012), a plea was offered and communicated to the defendant, but it was rejected upon advice of counsel. The defendant went to trial and was convicted. The sentence was much greater than the offered plea. The governmental attorneys conceded that the advice of defense counsel to reject the plea fell below the standard of adequate assistance of counsel.
The United States Supreme Court held that ""prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence." Applying the principle to the specific facts of the case it stated,"Respondent received a more severe sentence at trial, one 3½ times more severe than he likely would have received by pleading guilty. Far from curing the error, the trial caused the injury from the error. Even if the trial itself is free from constitutional flaw, the defendant who goes to trial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence."
The court did impose some limits on legally cognizable prejudice. "If no plea offer is made, or a plea deal is accepted by the defendant but rejected by the judge, the issue raised here simply does not arise." However, a fair trial leading to a conviction itself could not wipe the slate clean. "The fact that respondent is guilty does not mean he was not entitled by the Sixth Amendment to effective assistance or that he suffered no prejudice from his attorney’s deficient performance during plea bargaining."
In fashioning an appropriate remedy, the Supreme Court recognized that in some cases, simply a new sentence might effectively redress the constitutional violation, but where the offered plea would have been to reduced charges or the judge was bound by mandatory sentencing for the offense of conviction, another remedy for the constitutional violation should be found. In this case, the proper remedy was "to order the State to reoffer the plea agreement. Presuming respondent accepts the offer, the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence respondent pursuant to the plea agreement, to vacate only some of the convictions and resentence respondent accordingly, or to leave the convictions and sentence from trial undisturbed."
These decisions usher in a new type of constitutional right to plea bargaining which will involve the courts as overseers of the process. With regard to immigration, the new decisions were preceded by Padilla v. Kentucky, 559 U. S. ___, ___ (2010), which set aside a plea because of misinformation from counsel about its immigration consequences. In the wake of Padilla, criminal defense counsel have increasingly involved immigration consultants to assess the potential immigration consequences of a specific plea that is being considered. The relationship however can be asymmetric. Criminal defense counsel are directly involved in the criminal law attorney-client relationship, unlike the immigration consultants. Inconveniently truthful immigration advice can be brushed aside in favor of a more convenient viewpoint out of stubbornly engrained desires to present a probation-available offense to the client.
With the advent of these two new decisions, one can expect an unfavorable opinion from an immigration advisor about the wisdom of a particular plea to be taken more seriously than ever by defense counsel, as failing to report it to the client could result in a determination that the criminal attorney's advice to the client fell below the standard of care, even with other sources of conflicting advice. What remains unclear following these decisions is whether removal or inadmissibility can be included among the legally cognizable types of prejudice that will require a remedy under this new constitutional right, and what the remedy might be. The opinion in Padilla v. Kentucky, 559 U. S. ___, ___ (2010) seems to suggest strongly that the likelihood of unfavorable immigration consequences should be cognizable as a type of prejudice that will justify setting aside a conviction or sentence, but perhaps only in the criminal proceeding and not the immigration context, since the deficient performance occurred in the criminal proceeding and not in the immigration case.
In the next blog entry we will return to the fundamentals of the categorical and modified approach in criminal/immigration cases.
Tuesday, March 13, 2012
Ever since Homeland Security began deporting criminal aliens as a priority in the absence of bi-partisan comprehensive immigration reform, the importance of this tool to the criminal and immigration practitioner has never been higher.
I had a client who retired after many years of honest work in a trade, where he served as union steward. He was a husband, father and grandfather. When he went to the social security office to apply for benefits, he was erroneously informed that he had to renew his green card because it was so old. Being a law-abiding citizen, he did as he was told and applied for a green card renewal.
The difficulty was that he had not always been law-abiding. As a young man he had been something of a tough. He got into trouble. He served time. One of the crimes for which he was convicted had a nasty ring to it, assault with intent to commit involuntary sexual contact. He went to trial, was found guilty after a trial and was given probation with a few months of incarceration in the county jail. He did the time, completed the probation and moved on to the exemplary life he lived from that time until now.
That was some 40 years ago.
When he applied for the green card renewal, this nasty sounding crime came up on the computer. It took several years, but ICE finally caught up with him. One day, after an evening of working on the new retirement house and a good night’s sleep, he was swept up by the police in front of his distraught wife and taken to an immigration detention facility, charged with an aggravated felony and denied bond. He was told he was on the way out of the country. No one could save him.
The categorical and modified categorical analysis did. The immigration judge ruled that the state law crime of which he was convicted failed the analysis, and therefore the conviction did not count as a deportable offense. He was released. Proceedings were terminated. He got his green card and his former life back. Six months later he became a citizen.
In the next several installments, we are going to visit the categorical and modified categorical analysis and discuss its origins, outlines, applications, and usefulness in both immigration law and federal criminal sentencings, where it also applies.