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Sunday, April 11, 2010

Vindicating the rise and rise of Jack Chin, and a random thought re: Team Kagan and SCOTUS

He's been too modest to announce it during his blogging stint, and I've been delinquent in announcing it, but the Supreme Court recently embraced Jack Chin's work on the Strickland obligations of counsel to inform defendants of collateral consequences such as deportation. In Padilla v. Kentucky, which was handed down almost two weeks ago, all of the  seven Justices cited Jack's 2002 Cornell piece with Richard Holmes. Interestingly, the piece was cited five times across all 3  two opinions (majority, concurring, and dissenting). The majority opinion, written by Justice Stevens, was joined by Kennedy and the rest of the fab 4; Roberts and Alito concurred in the judgment, and Scalia & Thomas dissented. Aside from Jack and Richard's piece, the Court also quoted and cited an amicus brief by prawfs in crim law/proc and legal ethics. Who says there's nothing applicable from the world of scholarship??

The case is important for all criminal defense attorneys advising plea deals. While deportation is the focus of the case, Justice Alito's concurring opinion makes clear that deportation will not be the only "collateral" consequence that will be implicated by the Padilla opinion.  That's because it will be hard to restrict the logic here: removal proceedings are concededly a "civil" issue, but the SCT now recognizes deportation as "intimately" if not inextricably connected to criminal convictions. The same can be said of any number of other collateral consequences that attach as a result of conviction (as opposed to simply conduct).

Three other points. 

First, I was surprised and, yes, disappointed to see the stingy position taken by the Solicitor General's office in this case: "In the United States’ view, 'counsel is not constitutionally required to provide advice on matters that will not be decided in the criminal case,' though counsel is required to provide accurate advice if she chooses to discusses these matters."  I was heartened to see that this position was rejected. Everyone's now interested in SG Kagan's views as she is on the shortlist for Stevens' seat. I'm a huge fan of "Team Kagan" as a general matter, but I'm not sure how much this position is expressive of her personal views and what she might argue as a Justice. (My sense is that the position she takes as SG is likely to be closer to what her views actually are than if she were simply a private lawyer, but perhaps that is naive in this situation. That said, understanding that the US is her client, it's not obvious why the US government is not well-served by defendants with full and frank advice about the consequences of plea bargains.)

Second, this case might be a fair data point for Barry Friedman's thesis about the SCt's majoritarian tendencies, since the Court here basically entrenched as constitutionally required a practice that has been espoused as obligated under professional norms and is already a feature of many states' plea bargaining processes.  See n. 15 of the opinion, providing cites to over 20 states' laws requiring courts to inform defendants of possibly adverse immigration consequences. While 23 is not 26 or 40, perhaps it's worth noting that Cal, NY, Tex and Fl were among those states cited, so it's likely a majority of the population lives in the states where this happens--probably a better way of representing national majorities than counting states' noses themselves. (Oops: further study shows at least 28 states already adopted the rule in question.)  And while I'm thinking about Friedman, I'd be remiss if I didn't also link to Why Law Should Lead, a very interesting and critical take on Friedman's book by newbie UTex prawf Justin Driver in the New Republic.  

Third, after reading the dissent by Scalia and Thomas, I was not persuaded by their claim  that no principle justifies the extension of Strickland to this situation. This argument of theirs relies on the formality associated with the criminal prosecution and the collateral consequences arising from conviction, such as deportation. Scalia and Thomas rejected formalist distinctions between sentencing fact vs criminal elements in the context of Apprendi-land, culminating in their participation in the majorities for Blakely and Booker (merits). It's not clear why their realism must break here.

Specifically, the dissent in Padilla is wrong to think there's no principle involved here that would justify the requirement of the majority. When punishing someone like Padilla, the state is speaking in a form of communicative retributivism. There's no way of reasonably disclaiming that the deportation is also not part of the communication of condemnation associated with punishment. Absent the conviction, the deportation doesn't occur, and there's no way of justifying the deportation penalty in a manner that is simply a matter of "risk regulation." (The case for risk management would ironically be stronger on the other hand if there were only conduct, not a conviction, that served as the basis for deportation.) Thus as long as the gov't is speaking in that register of condemnation, it is on the hook for justifying that burden as part of its punitive arsenal and it must also provide appropriate levels of procedural safeguards to ensure fairness in the imposition of these sanctions. 

Posted by Dan Markel on April 11, 2010 at 02:30 PM in Constitutional thoughts, Criminal Law, Dan Markel | Permalink

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" the Court also quoted and cited an amicus brief by prawfs in crim law/proc and legal ethics. Who says there's nothing applicable from the world of scholarship??"

I don't think the argument is that there's absolutely nothing useful from the world of scholarship. Rather, the belief is that pieces like Chin and Holmes are the exception rather than the rule. Reading from the abstract, the two authors "argue[] that the [collateral consequences] rule is inconsistent with Strickland v. Washington."

A paper that argues that a particular doctrinal rule is inconsistent with case law is not representative of most legal scholarship today. Judge Edwards' article gives the impression that scholarship of this type is in fact frowned upon or thought of as "dull" or "ministerial." The footnotes in Chin and Holmes article are filled with citations to statutes and case law, another no-no.

So, the usefulness and practicality of Chin and Holmes piece hardly vindicates the 90% of legal scholarship that cites mostly or entirely other law review articles and articles from the arts & sciences. If Chin and Holmes argued for a "paradigm shift" regardless of doctrine and grounded wholly in some "law and..." theory, then perhaps the piece would be similar to current legal scholarship.

Posted by: anonprawf | Apr 11, 2010 8:44:30 PM

Anon, I was being a little flip in my initial remark. I think your point is well-taken.

Posted by: Dan | Apr 11, 2010 9:52:26 PM

"it's not obvious why the US government is not well-served by defendants with full and frank advice about the consequences of plea bargains"

That is kind of like asking why the U.S. government (and state governments, including Kentucky) is not well served by stringent death penalty jurisprudence that makes sure no innocent people are executed. The predictable consequences of the Padilla ruling are (1) fewer plea bargains, and (2) lots of collateral challenges to prior plea bargains for inadequate performance of counsel. Both of those consequences are adverse to the interests of the Department of Justice.

Posted by: TJ | Apr 12, 2010 2:42:33 AM

TJ, that's a fair point, but I think both issues raise concerns. Fewer plea bargains is not an unmitigated bad especially if they occur without the standard of intelligent and voluntary agreement by the defendant; and collateral challenges to prior plea bargains based on IAC is also a good thing. What you're saying amounts to a fear of too much "justice" in the form of reduction of Type I errors.

Posted by: Dan Markel | Apr 12, 2010 9:53:00 AM

Dan,

Two points.

First, while it is true that more process for defendants is not an unmitigated bad, it is also not an unmitigated good that you seem to imply with the "too much justice" quote. Guilty people as well as innocent people will get off with additional process. Moreover, additional process is costly, and it is rather naive to pretend that we can or should spend unlimited amounts of money to make sure every defendant has Clarence Darrow representing him and giving him full information, unlimited access to evidence, a hundred layers of appeals, etc. There might not be something as too much justice, but there certainly is too expensive justice.

Second, whatever the proper balance is in the amount of process due (and the amount of information given is part of that), it certainly is not the responsibility of the Department of Justice or the State of Kentucky to make that balance de novo. Perhaps the court is correct that a defendant is entitled to know about the deportation consequences of a plea bargain; but it seem absurd to contend that the State of Kentucky should concede that without a fight (i.e. confess error) since the rule would promote more "justice" (at least in your view and the court's ultimate view). And if Kentucky has no such obligation, then I don't see why the Department of Justice--which has exactly the same set of interests on the Federal level--would.

Posted by: TJ | Apr 12, 2010 7:07:45 PM

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