The Harlan Institute for Constitutional Studies www.HarlanInstitute.org Josh Blackman | JBlackman@HarlanInstitute.org Yaakov Roth | YRoth@HarlanInstitute.org January 5, 2010 Padilla v. Commonwealth of Kentucky Argued before the United States Supreme Court on October 13, 2009 Petitioner (Party Appealing the Case to the Supreme Court): Jose Padilla Respondent: Commonwealth of Kentucky Question: If an immigrant pleads guilty to a crime because his lawyer tells him that he will not be deported as a result of pleading guilty, but the lawyer was wrong and the Government attempts to deport the immigrant, can the immigrant withdraw his guilty plea? Case Background Jose Padilla was born in Honduras and immigrated to the United States in the 1960s and served in the U.S. Army. But he never became a full citizen. In 2001, he was arrested for trafficking in marijuana and charged with various drug crimes in Kentucky court. Padilla talked to his lawyer, who told him that if he accepted the prosecutor’s plea deal, he would have to serve 5 years in prison but would not be deported from the country. Padilla agreed to plead guilty. However, the lawyer had made a mistake of law, and in fact once Padilla served his jail sentence, the Government would deport him to Honduras. Padilla discovered the error a few years later, and brought a law suit to withdraw his guilty plea and have a jury trial on his drug charges instead. Padilla claimed that his lawyer was ineffective, thus violating Padilla’s Sixth Amendment right to effective representation by an attorney. Opinion of the State Supreme Court The Kentucky Supreme Court did not agree with Padilla’s argument. The Court said that because the Sixth Amendment only guarantees the right to a lawyer for criminal cases, the fact that Padilla’s lawyer gave him bad immigration law advice does not matter. In other words, the error made by the lawyer was on a “collateral” matter -- an issue only indirectly related to the criminal charges that Padilla was facing -- and the Court decided that guilty pleas could only be withdrawn if the attorney gave bad advice on a matter directly related to the criminal case, like the length of the sentence or the chances that the defendant would be found guilty. Two Judges dissented (disagreed with the majority) on the Kentucky Supreme Court. These Judges wrote that if the lawyer’s bad advice actually affects the defendant’s decision to plead guilty or go to trial instead, then the lawyer is by definition not effective and the defendant’s Sixth Amendment rights were violated. If so, the defendant must be allowed to withdraw the guilty plea in order to cure the constitutional violation. Padilla appealed this decision to the United States Supreme Court by requesting, or petitioning for, a writ of certiorari, which the Court granted. Argument of the Jose Padilla (Petitioner) On appeal to the United States Supreme Court, Padilla argued that under the precedent of Strickland v. Washington, 466 U.S. 668 (1984), a lawyer is constitutionally “ineffective” if his representation of the defendant fell below the level of “reasonableness.” Some clients, like Padilla, might care most about whether they get to stay in the United States and not how long they must stay in jail, and so in such a case it would not be reasonable for the lawyer to make a serious mistake about his immigration status. The distinction between matters directly related to the criminal case, and those only indirectly related, like future immigration consequences, is the wrong line: What should count is what counts for the defendant in the particular case. According to Padilla, the Kentucky Supreme Court’s approach is too mechanical and not realistic. Argument of the Commonwealth of Kentucky (Respondent) Kentucky argued that the Kentucky Supreme Court was correct. The lawyer’s duty is only to tell the defendant what direct consequences he will face if he is convicted: for example, how long he will be in jail, how big of a fine he will have to pay, and so on. He cannot be responsible for also advising the defendant whether, if he pleads guilty, the Government will deport him or he will lose his job or his wife will divorce him. That would be impractical. And anyway, those are matters that fall outside of the criminal process and the Sixth Amendment is not concerned with them. Because Padilla knew the direct consequences of pleading guilty and decided to plead guilty anyway, he cannot change his mind three years later. Constitutional Provision Sixth Amendment to the United States Constitution In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. Case Law Precedents Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court considered at what point a lawyer does so bad of a job representing and defending a criminal defendant that the defendant has been deprived of his right under the Sixth Amendment to the “Assistance of Counsel.” The Court decided that the proper test is “reasonably effective assistance,” but what that means depends on the facts of the case. There is no checklist because what is reasonable depends on all of the circumstances. The main goals of the lawyer is to make sure that the criminal process is fair, and courts must keep that in mind when evaluating whether a lawyer was effective. In the Court’s own words: “A number of practical considerations are important for the application of the standards we have outlined. Most important, in adjudicating a claim of actual ineffectiveness of counsel, a court should keep in mind that the principles we have stated do not establish mechanical rules. Although those principles should guide the process of decision, the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.” Hill v. Lockhart, 474 U.S. 52 (1985). In Hill, the Supreme Court considered the claim of a prisoner who said that his criminal defense lawyer had been ineffective under the Sixth Amendment. The prisoner had pled guilty to first-degree murder, but later argued that his lawyer had not advised him that he would not be eligible for parole until he completed half of his jail sentence (35 years). Instead, the lawyer had wrongly told him that he could be released on parole after finishing only one-third of his sentence. The Supreme Court refused to let the prisoner withdraw his “voluntary” guilty plea. The Court applied the Strickland test described above, but did not decide whether erroneous advice about a matter “collateral” to the criminal charge (that is, when the defendant could get parole) failed the “reasonably effective representation” test. Instead, the Court said that it did not matter because the defendant would probably have pled guilty anyway, even if the lawyer had given him the right information about parole. After all, had he gone to trial he might have received a longer sentence, and still would have been ineligible for parole until finishing half of it. [Note: assume for purposes of this exercise that Padilla would not have pleaded guilty had he been told that he would be deported after serving his sentence.] Voting History of the Justices on Assistance of Counsel Cases Wiggins v. Smith, 539 U.S. 510 (2003), involved a defendant whose lawyer did not investigate the defendant’s childhood and background, or tell the jury that the defendant had been severely abused as a child (so-called “mitigating” evidence). The jury sentenced the defendant to death. The Court held that the lawyer’s performance was ineffective, and ordered a new sentencing hearing with a new lawyer. Schriro v. Landrigan, 550 U.S. ___ (2007), involved a defendant who told his lawyer not to tell the jury about “mitigating” evidence, because he wanted the death penalty. The lawyer complied and the defendant was sentenced to death. The Court held that the lawyer’s performance was above the constitutional minimum. Knowles v. Mirzayance, 556 U.S. ___ (2009): In this case, the lawyer advised the defendant not to bring an “insanity” defense because it would probably lose. The defendant agreed. Even though there was little cost to claiming insanity, it was not ineffective for the lawyer to advise against it, because he made a reasonable judgment that the jury would not believe the defense. Wiggins v. Smith Schriro v. Knowles v. Landrigan Mirzayance Roberts Not yet on Court E E Stevens I I E Scalia E E E Kennedy I E E Thomas E E E Ginsburg I I E Breyer I I E Alito Not yet on Court E E Sotomayor Not yet on Court Not yet on Court Not yet on Court E = Lawyer’s performance was Effective under the Sixth Amendment I = Lawyer’s performance was Ineffective under the Sixth Amendment Teacher’s Guide Create a free account for your class at www.FantasySCOTUS.net Join the “Harlan Institute for Constitutional Studies” at http://fantasyscotus.net/league-action.php?ac=join&id=214 to compete against fellow classes across the Country participating. Assign 2-3 students to each of the Nine Justices, and ask them to explain how they think their Justice will decide the case. By analyzing the facts of the case, the relevant statutes, different precedents, and the voting history of the Justices, your students will need to determine whether their Justice will affirm, or reverse, the lower court. After your students make their predictions, add up the votes, and vote at http://fantasyscotus.net/predict.php?cid=5 Based on your students’ predictions, enter the Outcome (Affirm or Reverse), the Split (9-0, 8-1, 7-2, 6-3, 5-4, etc), and which Justices will vote with the Majority, and which Justices will vote with the Dissent. When the case is decided, see how your class ranks with other classes at http://fantasyscotus.net/my-league.php?cmd=resetall Issues to Discuss Discuss the hierarchy of state and federal courts. In this case, the Kentucky Supreme Court decision was reviewed by the United States Supreme Court, but only because it involved interpreting an Amendment to the federal Constitution. If the case only involved a question of Kentucky law (for example, the proper sentence for Padilla’s state drug crime) then the United States Supreme Court would have no power to review the Kentucky Supreme Court’s decision. This case presents a clash between bright-line rules and flexible standards. Should we have a clear rule that lawyer advice on “collateral” issues does not violate the Sixth Amendment? It would be easier to apply that rule. But flexible standards like the one articulated by the Supreme Court in Strickland -- that lawyers must stay above the level of “reasonably effective” -- allow courts to tailor the standard to all sorts of different cases and fact patterns. This is a tradeoff between fairness and predictability or efficiency. Consider discussing the gap between the constitutional text, which says only that defendants shall have the right to “Assistance of Counsel,” which might mean only that defendants can bring their own private lawyers, to our current understanding, which requires the Government to provide a free lawyer to the defendant, and allows the defendant to withdraw his plea or overturn his conviction if the lawyer did not do a good job. How effective would the right to counsel be if the Supreme Court had not taken us from A to B? Which interpretation do we think the Framers of the Sixth Amendment intended? Does that matter?