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Matthew Kolken on Deportation And Removal

Supreme Court Reaffirms Right to Competent Counsel During Plea Negotiations

Rating: 2 votes, 5.00 average.

The United States Supreme Court has issued two decisions (Missouri v. Fry, and Lafler v. Cooper) that reaffirm the constitutionally protected right to effective assistance of counsel in the criminal context during plea negotiations.


Both cases cite Padilla v. Kentucky, where the Court ruled that an attorney must inform their non-citizen client of the risk of deportation for consideration in taking a criminal plea, or the plea will be rendered constitutionally deficient.  


In Missouri v. Fry the Court held that: "The Sixth Amendment right to effective assistance of counsel ex*tends to the consideration of plea offers that lapse or are rejected and that that right applies to "all 'critical' stages of the criminal proceedings." No. 10-444. Decided March 21, 2012.


In Lafler v. Cooper the Court held that: "Where counsel's ineffective advice led to an offer's rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the actual judgment and sentence imposed." No. 10-209. Decided March 21, 2012.


We are coming up on the two-year anniversary of the Court's decision decision in Padilla v. Kentucky (March 31, 2010).  Since the decision, there has been a split in the Circuits over whether the Court's ruling applies retroactively.  


The Court addresses retroactivity in Lafler stating that the decision will not open the "floodgates to litigation," that the system will not be "overwhelmed," and that defendants will not receive "windfalls" as a result of the decision citing Padilla.


The Tenth Circuit and Seventh Circuit have ruled that Padilla doers not apply retroactively.


The Third Circuit has ruled that Padilla does apply retroactively.


Due to the fact that the Court's most recent decisions prominently cite Padilla, I think it is safe to say that the Court will ultimately clarify their position by finding that a non-citizen has a guaranteed right to effective assistance of counsel during plea negotiation, and that a constitutional violation cannot stand regardless of when it occurred.


What I find amazing is the length that certain Courts will go to undermine a non-citizen's Constitutionally protected right to counsel.

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