Monthly Archives: December 2016

U.S. Supreme Court to Hear Tennessee Sixth Amendment Case on Immigration-Related Plea Bargains

By Daniel Horwitz:

The United States Supreme Court has agreed to hear a Sixth Amendment case out of Tennessee in its March 2017 sitting.  The case – Jae Lee v. United States[1] – focuses on the Sixth Amendment’s guarantee of effective assistance of counsel when plea bargains trigger deportation consequences.  Specifically, Jae Lee will determine whether a defendant who would likely have been convicted if he had proceeded to trial is prejudiced by ineffective counsel when he accepts a guilty plea on the basis of erroneous legal advice that he will not be deported.

The facts of Jae Lee are not in dispute.  In 1982, Mr. Lee legally immigrated to the United States from South Korea.  Thereafter, Mr. Lee completed high school and moved to Memphis with his family, where he became a successful restaurateur.  As the Sixth Circuit noted, however, Mr. Lee “also became a small-time drug dealer,” and in 2009, he “was charged with possession of ecstasy with intent to distribute” in violation of federal drug laws.  If convicted, Mr. Lee would immediately become deportable.  Unfortunately for Mr. Lee and his family, the case against him was also very strong.

After being indicted, Mr. Lee’s criminal defense attorney advised him to plead guilty in exchange for a lighter sentence.  Mr. Lee’s attorney also advised him that if he accepted a guilty plea, he would not be deported.  On the basis of that advice, Mr. Lee decided to plead guilty.

Unfortunately for Mr. Lee, the advice that he received from his attorney turned out to be spectacularly wrong.  Notwithstanding his attorney’s advice to the contrary, Mr. Lee’s guilty plea actually did render him deportable, and he was immediately subjected to removal proceedings as a result.  Had he avoided a criminal conviction or been convicted of a different offense, however, Mr. Lee would have been permitted to remain in the country.

Understandably upset that he had pleaded guilty based on legal advice that turned out to be completely incorrect, Mr. Lee sought to withdraw his guilty plea on the basis that he had received the ineffective assistance counsel.  Under the standard for ineffective assistance of counsel established in Strickland v. Washington,[2] a defendant must satisfy two separate requirements in order to prevail.  First, a defendant must demonstrate that his attorney’s performance was “deficient” in that it fell below prevailing professional norms.  Second, the defendant must demonstrate that he suffered legal “prejudice” as a consequence of his counsel’s deficient performance.  Both requirements must be met in order to win a claim of ineffective assistance of counsel, which – if successful – would have allowed Mr. Lee to withdraw his guilty plea and proceed to trial instead.

Because the government conceded that Mr. Lee’s attorney had rendered deficient counsel by misadvising him about the deportation consequences of accepting a guilty plea, the only question remaining was whether Mr. Lee was legally “prejudiced” by his attorney’s erroneous advice.  Typically, a defendant challenging a conviction on the basis of ineffective assistance of counsel must prove that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”[3]  Importantly, however, when it comes to plea bargaining, the test for prejudice is slightly more favorable to defendants.  Generally, to withdraw a guilty plea on the basis of ineffective counsel, a defendant must show “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”[4] As this author explains in his 2016 Harvard Latino Law Review article on this subject, however, following the U.S. Supreme Court’s landmark 2010 decision in Padilla v. Kentucky,[5] immigration-related pleas have a different standard still.  Specifically:

“In the context of deficient immigration counsel, [] the test is whether ‘a decision to reject the plea bargain would have been rational under the circumstances.’ It is not yet clear whether, or to what extent, there is a substantive difference between these standards, and indeed, the Government occasionally ‘wobbles between the two standards for allowing the withdrawal of one’s guilty plea upon belated discovery of the deportation threat.’  What is clear, however, is that the test for prejudice under Padilla is not whether a defendant would have been deported anyway.  Instead, it is whether the defendant would rationally have rejected the offered plea bargain and either proceeded to trial or negotiated an alternative plea bargain if the defendant had received the competent immigration counsel to which all immigrants are constitutionally entitled.”[6]

The federal Circuits are deeply divided on whether it can ever be “rational” for an obviously guilty defendant to reject a plea bargain and instead attempt to “throw a Hail Mary” at trial in the hopes of avoiding near-certain deportation consequences.[7]  After acknowledging this split of authority, the Sixth Circuit reaffirmed its prior holding in Pilla v. United States that “no rational defendant charged with a deportable offense and facing ‘overwhelming evidence’ of guilt would proceed to trial rather than take a plea deal with a shorter prison sentence.”  Accordingly, the Sixth Circuit denied Mr. Lee an opportunity to withdraw his guilty plea, and the Supreme Court granted review.

The problem with the Sixth Circuit’s (and several other Circuits’) take on this issue, however, is that it misapplies the standard for prejudice under Padilla and also violates the bedrock constitutional requirement that a guilty plea must be entered voluntarily.  As Judge Posner of the Seventh Circuit wrote in a similar case, for example, “[j]udges and prosecutors should hesitate to speculate on what a defendant would have done in changed circumstances,” and “a criminal defendant cannot be denied the right to a trial, and forced to plead guilty, because he has no sturdy legal leg to stand on but thinks he has a chance that the jury will acquit him even if it thinks he’s guilty.”[8]  Additionally, as this author explains in his Harvard Latino Law Review article referenced above, “several commentators have recognized the reality that in most instances, non-citizen defendants are likely to view deportation as a far more serious punishment than a conviction that results in incarceration.” Thus:

By any metric, a defendant who accepts a guilty plea as a consequence of [] affirmative misadvice [that he will not be deported]—only to learn later on that he is to be deported anyway—has suffered serious prejudice in the form of a criminal conviction due to his counsel’s incompetence.

This sort of bait-and-switch—which, incidentally, occurred in Padilla itself—represents a classic case of ineffective assistance of counsel. Indeed, on this point, even the two concurring Justices in Padilla enthusiastically agreed. As Justice Alito explained:

when a defendant bases the decision to plead guilty on counsel’s express misrepresentation that the defendant will not be removable[,] . . . it seems hard to say that the plea was entered with the advice of constitutionally competent counsel—or that it embodies a voluntary and intelligent decision to forsake constitutional rights [at all].

Daniel A. Horwitz, Actually, Padilla Does Apply to Undocumented Defendants, 19 Harv. Latino L. Rev. 1, 19 (2016).

Consequently, given that fully seven of the Supreme Court’s eight current Justices have held that a defendant cannot be denied the opportunity to withdraw a guilty plea under these circumstances, it seems likely that Mr. Lee – and his excellent Tennessee attorney Patrick McNally – will ultimately prevail.

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[1] 825 F.3d 311 (6th Cir. 2016), cert. granted, No. 16-327, 2016 WL 4944484 (U.S. Dec. 14, 2016).

[2] 466 U.S. 668, 687 (1984).

[3] Id. at 694.

[4] Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

[5] 559 U.S. 356 (2010).

[6] Daniel A. Horwitz, Actually, Padilla Does Apply to Undocumented Defendants, 19 Harv. Latino L. Rev. 1, 15 (2016) (citations omitted).

[7] Compare Pilla v. United States, 668 F.3d 368, 373 (6th Cir. 2012); Haddad v. United States, 486 Fed. Appx. 517, 521–22 (6th Cir. 2012); Kovacs v. United States, 744 F.3d 44, 52–53 (2d Cir. 2014); United States v. Akinsade, 686 F.3d 248, 255–56 (4th Cir. 2012); and United States v. Kayode, 777 F.3d 719, 724–29 (5th Cir. 2014), with United States v. Orocio, 645 F.3d 630, 643–46 (3d Cir. 2011), abrogated on other grounds by Chaidez v. United States, ––– U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); DeBartolo v. United States, 790 F.3d 775, 777–80 (7th Cir. 2015); United States v. Rodriguez–Vega, 797 F.3d 781, 789–90 (9th Cir. 2015); Hernandez v. United States, 778 F.3d 1230, 1234 (11th Cir. 2015).

[8] DeBartolo v. United States, 790 F.3d 775, 778-89 (7th Cir. 2015).

Grading Nashville Policymakers on Criminal Justice Reform: A Report Card

By Daniel Horwitz:

As voters and thought leaders of all political stripes move toward consensus that the American experiment with mass incarceration has failed, bipartisan coalitions aimed at reforming the criminal justice system have emerged in cities and states across the nation.  The localized nature of this movement is hardly a surprise, given that – as the Washington Post has noted – “most criminal-justice policy happens at the state and local level.”  In addition to the fact that state and local prisons and jails account for the overwhelming majority of the incarcerated population, reform of any kind generally begins at lower levels of government before coming to pass in the (in)famously deliberate halls of the United States Congress.

Nashville, for its part, is no stranger to the influences of the criminal justice reform movement, as indicated by the recently-announced partnership on criminal justice reform between the ACLU, the Beacon Center, the Chamber of Commerce, and Goodwill Industries.  However, perhaps the most telling evidence that voters are beginning to demand sensible criminal justice policies is that policymakers have begun to campaign on them.  For example, in recent election cycles, Metro Councilmembers, the District Attorney, and the Mayor have all advanced platforms specifically dedicated to criminal justice reform in an attempt to curry favor with an eager electorate.  This report card attempts to grade these officials’ performances since taking office based on their campaign commitments.

1. The Metro Council:  C

Since Nashville’s 40-member Metro Council took office in 2015, few would argue that criminal justice reform has been a centerpiece of its agenda.  A notable exception to that, however, was the Council’s successful and resoundingly popular push to help steer low-level marijuana offenders away from the criminal justice system. Rather than having marijuana users arrested and prosecuted, the first-of-its-kind bill, spearheaded by District 35 Council Member Dave Rosenberg, empowers law enforcement to issue offenders civil fines or require community service instead.  (Note: contrary to a a misguided opinion by the Attorney General’s office, police officers and prosecutors have always enjoyed discretion not to pursue charges at all, and the bill does not constrain law enforcement or conflict with still-applicable state law in any way.)  The Council’s discretionary decriminalization bill was also supplemented by laudable efforts to track officers’ use of their newfound discretion for the purpose of “prevent[ing] potential bias from playing out with the new law.”

All-in-all, however, Metro Council Members have largely devoted their attention elsewhere.  This reality is disappointing, since the consequences of criminal justice policy are absolutely devastating to those affected by it.  Additionally, voting to militarize the local police force through a supplemental purchase of $1 million in ballistic armor (drawn from a reserve fund) while appropriating a fraction of that amount to fund critical programs like Legal Aid represents a disappointing reflection of the city’s criminal justice priorities.

Individual Council Members who are due credit for taking the lead on criminal justice reform efforts and attempting to make them a priority include Dave Rosenberg (District 35), Freddie O’Connell (District 19), Fabian Bedne (District 31), and Bob Mendes (At-Large).  Overall, however, the Metro Council gets a C.

2.  The District Attorney:  B+

In 2014, Nashville District Attorney Glenn Funk campaigned for office under the slogan that he knew “the difference between a bad person and a good kid in trouble.”  Since then, local media coverage of his tenure has largely been dominated by hiring and firing decisions, disputes about the ethics of a release-dismissal agreement and a pension arrangement, and other matters unrelated to substantive criminal justice policy.  Lost amid the coverage, however, has been any meaningful assessment of Funk’s substantive criminal justice reform efforts, which are significant.

As Nashville Scene criminal justice writer and Washington Post contributor Steven Hale has written, Funk represents “an example of a politician who actually kept the promises he made while rolling through the neighborhood during the campaign.”  Significantly, many of his promises were also specific and measurable.  To explore two examples, during his campaign, Funk detailed his views on driver’s license charges and Drug Free School Zone penalty enhancements – two critical issues affecting thousands of prosecutions – as follows:

  1. “Good public policy demands that all drivers are licensed. Everyone drives. When policy creates barriers to keeping a license, other problems are created. For one, unlicensed drivers don’t have insurance, and if a wreck happens, we want the at fault driver to have insurance. Another issue is safety of police officers who pull over a motorist. If that motorist is licensed, the officer knows who has been stopped and their history. For these reasons and others, we should be helping people obtain and keep driver’s licenses.
  1. “I will work with the legislature to tighten the language of the school zone law so that it protects schools and children without causing widespread incarceration beyond the substantial punishments already on the books for narcotics offenses. Assistant DAs will enforce the law but use prosecutorial discretion to seek fairness and justice.

After taking office, Funk immediately made good on both of these promises and several others, such as increasing diversity in the District Attorney’s office (the DA’s office is now several times more diverse than it has been at any point it its history).  He also took substantial heat for doing so.  With respect to (mostly) doing away with criminally prosecuting people who lack driver’s licenses, for example, Funk was harshly criticized by Nancy Amons of Channel 4 News for failing to seek jail time as a matter of course.  In response, this author (and others) vigorously defended the move as a laudable reform that keeps families together, saves money, and minimizes the consequences of a law that literally fabricates criminality, punishes poverty, and operates only a single step removed from a debtor’s prison.

Funk also implemented a top-down office policy of pursuing school zone enhancements only when drugs are actually sold to kids or on school property.  This little-noticed reform, too, carries enormous importance.  Because the overwhelming majority of Nashville qualifies as a “school zone,” and because the law applies broadly even to sales that take place between adults on the highway at 2:00AM during summer break, the law could technically apply to almost every drug sale, thereby dramatically increasing potential penalties for nearly all non-violent drug offenses.  Prior abuse of the school zone enhancement was used coercively to influence plea bargaining, and it resulted in many spectacularly long sentences for non-violent drug offenders who refused to plead guilty.  Significantly, the law also generated outrageous racial disparities.  For example, although white people are statistically more likely to deal drugs, nearly 90% of defendants who were punished with the school zone enhancement in Nashville were people of color, and many received decades-long sentences for first-time, non-violent drug offenses.  Funk’s reform on the use of the Drug Free School Zone enhancement eliminated the worst of these abuses overnight.

The overall culture of the DA’s office has also undergone a dramatic makeover during Funk’s administration, receiving commendations from a defense bar that was previously accustomed to walking into what often felt like a warzone.  Although some prosecutors definitely missed the memo, and although there’s certainly still room for improvement, speaking personally, the author and many others have also found the Funk administration as a whole to be accessible, reasonable, and not unduly committed to bringing the full force of the law down on anyone and everyone without reason.  Funk’s personal support for causes like improving expungement access and ensuring LGBT equality within the criminal justice system are similarly praiseworthy, though his prosecutors don’t always adhere to those views.  While the author would love to see movement on issues like bail reform and a wrongful conviction integrity unit going forward, to date, the District Attorney’s office receives a B+.

3.  The Mayor:  D-

If promises were policy, Mayor Barry would receive the A+ on criminal justice reform that she campaigned on.  From ending the criminalization of homelessness, to mandating police body cameras, to improving expungement access, to taking the lead on marijuana decriminalization, to rolling out Metro ID cards in order to facilitate successful re-entry, to “waking up every day and being able to make a difference in someone’s life” who is being crushed by the weight of an unfeeling criminal justice system, criminal justice reform advocates unquestionably had their candidate in Megan Barry.  Unfortunately, however, promises are not policy, and the reality has not come even close to matching the rhetoric.

On criminalizing homelessness, Mayor Barry’s administration began by declaring that it did not “anticipate the need for arrests or criminal citations” for homeless people living in a tent-city style encampment at Fort Negley.  Unfortunately, however, it quickly arrived at “not ruling out arrest as an option” for those same people, forcibly disbanding the homeless encampment thereafter, and then in fact arresting some of its occupants in the process.  More recently, the Mayor’s office has inexplicably defended the Nashville Downtown Partnership’s recently-exposed policy of purchasing one-way tickets to bus homeless people – many of whom have mental illness – to other cities in an effort to solve Nashville’s homelessness problems.  To say the least, anti-homelessness advocates are not thrilled.

On police body cameras, the Mayor went from vocally supporting them as “really important” during her campaign to growing conspicuously silent about their previously-recognized merits during her first year in office.  More recently, under mounting pressure, she has re-committed to funding a police body camera program in next year’s budget.  Given that the program has not yet come to fruition, however, to date, progress remains non-existent, meaning that video footage is not available following use-of-force incidents.   Meanwhile, the Mayor’s office did take the lead on ensuring that $1 million was appropriated from a reserve fund to purchase military-grade ballistic armor for the Metro Nashville Police Department.  When it comes to criminal justice policy, the Mayor’s reticence to challenge her police chief on almost any issue even when confronted with evidence of racially discriminatory policing has also caused activists to question whether the MNPD is the proverbial tail wagging the dog.  Thus, suffice it to say that those concerned about preventing excessive or unnecessary use of force by law enforcement are not thrilled, either.

On expungement access, the Mayor’s pledge of support was similarly full-throated: “No individual should be unfairly penalized simply because they didn’t have the time, resources, or understanding of the law to have a charge expunged from their record,” she proclaimed.  In practice, however, while both Memphis and Chattanooga have committed resources to facilitating expungement access, Barry’s administration has done little more than deploy its legal department to oppose expungement access at virtually every opportunity.  This pledge, too, has not reflected reality, and expungement advocates are livid.

On marijuana decriminalization, the Mayor’s previous support also retrenched to such an extent that she “avoided taking a specific position” while an actual bill to decriminalize marijuana was coming down the pipeline (she ultimately signed it).  The silence was unexpected and curious, and even at the time, right-leaning Sheriff Daron Hall mustered the political courage to support it.  Thereafter, even after the reform passed, as activists called on the Mayor to use the power of her office ensure that the measure was actually implemented by the Metro Police Department, her office described such demands as “Nixonian.”  In sum: drug policy reform advocates have not been unduly impressed with the Mayor, either.

Additionally, efforts to develop municipal ID cards have fallen by the wayside entirely, another forgotten promise of a candidate who made many to the criminal justice reform community.  Fortunately, though, there has at least been recent movement on this issue from the federal government.  Whether Metro ID cards will become a reality here in Nashville under Mayor Barry’s administration, however, is anyone’s guess.

Taken together, evaluating her first year in office, the Mayor’s tenure with respect to criminal justice policy has been a frustrating disappointment.  Her recent commitment that Nashville will not become a jurisdiction that leverages its police force to enforce federal immigration law serves as a rare but significant bright spot.  Overall, however, the Mayor gets a D-.

For the sake of all affected – a population that includes all taxpayers and hundreds of thousands of people (and their families) in Nashville alone – let us all hope that our policymakers commit to meaningful reform in 2017.

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