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U.S. Supreme Court to Decide Whether the Padilla Ruling Applies Retroactively

Many criminal defense and immigration attorneys are aware of the far-reaching implications of the U.S. Supreme Court's decision in Padilla v. Kentucky. The ABA Journal has recently posted on its website that the Supreme Court is considering whether the 2010 Padilla decision will apply retroactively to convicted criminal defendants who faced deportation before the Padilla decision was made.


In the Padilla case, the defendant pled guilty to transporting a large amount of marijuana. Mr. Padilla was not a citizen of the United States, and he asked his attorney whether he would face deportation if he agreed to the guilty plea. Relying on the fact that Padilla had lived in the United States for such a long time (and had served in the Vietnam War), his defense attorney erroneously told him that deportation would not be an issue. In reality though, pleading guilty made his deportation mandatory under the law. Padilla appealed to the Kentucky Supreme Court, insisting that had he had known that he could be deported for pleading guilty he would have gone to trial. Because the Kentucky Supreme Court denied Padilla post-conviction relief, Padilla's case eventually went to the United States Supreme Court.

The United States Supreme Court ultimately found that Padilla's defense attorney should have at least advised Padilla as to the risk of deportation, and by failing to do so had violated Padilla's Sixth Amendment right to effective counsel. Regarding whether this error was enough to reverse Padilla's conviction, the United States Supreme Court left that up to the state of Kentucky to determine.

Now, the Supreme Court must decide whether the holding in Padilla should apply retroactively. The Court has recently granted review to Chaidez v. United States, which involves a Mexican immigrant who pled guilty in 2003 to fraud involving more than $10,000, and is accordingly subject to deportation. Contrary to what the Supreme Court may have assumed when issuing the Padilla ruling, "federal and state courts are openly and intractably divided over whether the Padilla holding applies retroactively."

More information on this upcoming decision in the Chaidez v. United States matter can be found at the SCOTUSblog.

U.S. Supreme Court Expands Defendants' Plea Bargain Rights

April 16, 2012, by The McKellar Law Firm, PLLC

Two cases argued before the U.S. Supreme Court have now allowed defendants to get a second chance at accepting a plea offer if their attorney either acts unethically or gives wrong advice to the defendant.


In State v. Frye, the defendant was charged with a felony for driving with a revoked license. While the prosecutor offered to reduce the charge to a misdemeanor if Frye pled guilty and agreed to serve for ninety days, Frye's defense attorney neglected to inform Frye of the offer. Frye was instead sentenced to three years in prison after pleading guilty to the charges.

In the second case, Lafler v. Cooper, the defendant was charged with assault with intent to murder after shooting a female in the thigh and buttocks. The prosecutor offered a plea deal twice to have the defendant serve a recommended prison sentence of four to seven years. But the defendant's attorney told the defendant to not accept the plea due to the attorney's belief that, under Michigan law, a defendant could not be convicted of attempted murder for wounds below the waist. Once the case went to trial, the defendant was sentenced to fifteen to thirty years in prison.

While the state in both cases argued that defendants do not have a constitutional right to a plea bargain-and therefore no constitutional right to assistance of counsel during a plea bargain- the Supreme Court disagreed. Under a 5-4 majority vote, Justice Kennedy opined that the right to adequate assistance of counsel guaranteed in the Constitution cannot exclude the "central role plea bargaining plays." Because plea bargaining is used in 95% of cases to determine "who goes to jail and for how long[,] [i]t is not an adjunct to the criminal justice system. It is the criminal justice system." When a defense attorney provides ineffective assistance of counsel during plea negotiations, the Supreme Court held that if a defendant can show that they would have accepted the original plea offer, the prosecutor would not have withdrawn the offer, and that the judge would have approved the offer, the defendant can get a second chance to accept the original plea offer.

Justice Scalia, in his dissenting opinion, believed that the decision did away with the idea that plea bargaining was "a necessary evil" to prevent the system from "grinding to a halt" if a majority of cases went to trial. Justice Scalia went on further by stating that this decision emphasized the idea that plea bargaining was like gambling at a casino. According to him, the decision "embraces the sporting chance theory of criminal law, in which the state functions like a conscientious casino operator, giving each player a fair chance to beat the house─that is to serve less time than the law says he deserves." An article discussing the potential ramifications of the above decision can be found here at