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In 2010, federal prosecutors indicted Jason Pleau after he shot and killed a man outside of a Rhode Island bank. The indictment appeared to be a sure sign that the federal government would seek the death penalty against Pleau, given that Pleau had already agreed to plead guilty to state charges and accept a life sentence without the possibility of parole. When federal prosecutors requested Rhode Island prison officials transfer Pleau to federal custody for prosecution, however, Rhode Island Governor Lincoln Chafee responded in unprecedented fashion: Chafee refused to turn Pleau over, citing Rhode Island’s long-standing opposition to the death penalty. . .
On the morning of Sunday, April 15, 2007, a Boston police officer was patrolling the streets of Dorchester when he spotted Kempess Sylvain apparently engaged in a sexual act with a prostitute.1 As the officer approached, he saw Sylvain take several small plastic baggies from his coat and place them into his mouth. A search of Sylvain revealed an additional baggie of crack cocaine. He was arrested and charged with possession of cocaine with intent to distribute and a drug violation in a school zone, as the incident occurred within 1000 feet of a childcare center.2 Sylvain—a noncitizen lawfully residing in the United States—pled guilty to simple possession of cocaine and received a suspended sentence. As a result, Sylvain automatically became subject to deportation, as the narcotics offense to which he pled guilty was a removable offense under federal immigration law.3
In 2010, the Supreme Court held in Padilla v. Kentucky that a defendant’s Sixth Amendment right to effective assistance of counsel includes the right to advice on whether pleading guilty carries the risk of deportation.4 In 2011, the Massachusetts Supreme Judicial Court (SJC) ruled in Commonwealth v. Clarke that Padilla applied retroactively to all guilty pleas obtained after April 1, 1997, the date on which Congress implemented the current immigration laws regarding deportation for criminal convictions.5 Clarke opened the door for Sylvain to appeal his conviction and, in 2012, he did. Sylvain alleged that his lawyer failed to advise that he could be deported if he pled guilty and that he would not have done so had he been so informed.6 While Sylvain’s appeal was pending, the Supreme Court decided Chaidez v. United States, which held that Padilla does not apply retroactively under federal law, effectively overruling the SJC’s decision in Clarke.7 Upon hearing Sylvain’s appeal, the SJC diverged from the Supreme Court and held that, as a matter of state law, Padilla applies retroactively under the Sixth Amendment and Article XII of the Massachusetts Declaration of Rights.8
Padilla Rights and the Question of Retroactivity
The Sixth Amendment entitles criminal defendants to effective assistance of counsel in defending the charges against them.9 If defendants fail to receive such assistance, they may seek post-conviction relief under the two-prong test set forth in Strickland v. Washington by proving that: their counsel’s representation fell below an objective standard of reasonableness, and they were prejudiced by their lawyer’s deficient performance such that the result of the proceeding most likely would have been different but for the lawyer’s errors.10 Strickland set a general standard of reasonableness to be applied on a case-by-case basis rather than defining a specific manner in which defense attorneys must advise their clients in any given scenario.11 In Padilla, the Supreme Court interpreted the Sixth Amendment within this construct and held that failing to advise criminal defendants on whether pleading guilty would subject them to deportation amounts to constitutionally deficient representation, thereby satisfying the first prong of the Strickland test.12 The Padilla Court did not, however, expressly address whether this interpretation of Sixth Amendment rights applied retroactively to defendants whose convictions had already become final.
A court ruling that relates to an issue of constitutional criminal procedure applies retroactively only if it relies upon preexisting law. Thus, if a decision announces a “new” rule, then it only applies prospectively and to cases that are on direct review at the time of the decision.13 The Supreme Court first articulated this framework in Teague v. Lane, establishing that a rule is new if it “breaks new ground or imposes a new obligation” on the government or “if the result was not dictated by precedent existing at the time the defendant’s conviction became final.”14 In later cases, the Supreme Court clarified that a result is “dictated by precedent” only if it would have been “apparent to all reasonable jurists” at the time of the decision.15 In other words, a case does not announce a new rule under Teague if it merely applies an already existing principle to a new factual context.16 In 2008, the Supreme Court decided in Danforth v. Minnesota that Teague sets a floor for the retroactive effect of rulings on criminal procedure rather than a ceiling.17 Under Danforth, states reviewing their own criminal convictions are free to adopt their own standards for retroactivity and give broader retroactive effect to court rulings on criminal procedures than would otherwise be available under Teague.18 Indeed, states define crimes, punishments, and procedural rules in a variety of ways; thus, as long as those rules do not violate the U.S. Constitution, they are not limited by an abstract federal interest in uniformity.
In the wake of Padilla, state and federal courts quickly diverged on the question of whether the Supreme Court’s holding constituted a new rule under Teague and applied retroactively.19 In Clarke, the SJC became the first state supreme court to interpret Padilla as having retroactive effect.20 Applying the Teague framework, the SJC held that the Supreme Court had not announced a new rule in Padilla, but merely applied the well-established Strickland standard to a new type of ineffective assistance claim.21 The SJC relied on the Supreme Court’s own characterization of Strickland as a general standard that “provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims.”22 In February of 2013, however, the Supreme Court held in Chaidez that Padilla did announce a new rule of criminal procedure, which therefore did not apply retroactively. The Chaidez Court pointed to the fact that, prior to Padilla, state and federal courts almost unanimously agreed that criminal defense attorneys were not required to advise clients of the immigration consequences of pleading guilty. The Court therefore reasoned that the result in Padilla was not “apparent to all reasonable jurists” prior to the decision.23
Massachusetts Splits From the Supreme Court in Sylvain
In Commonwealth v. Sylvain, the SJC rejected Chaidez and reaffirmed its holding in Clarke, ruling that Padilla did not announce a new rule and therefore applies retroactively to those convicted in Massachusetts after April 1, 1997.24 Additionally, for the first time the SJC expressly announced that Article XII of the Massachusetts Declaration of Rights imposes the same obligation to advise defendants of the potential immigration consequences of pleading guilty as the Sixth Amendment does, and that a defendant’s right to such consultation also applies retroactively.25 Applying Massachusetts’ equivalent of the Strickland standard to Sylvain’s ineffective assistance claim, the SJC decided that his counsel’s representation was constitutionally inadequate, but remanded the case for further findings on whether Sylvain would have actually proceeded to trial had his lawyer properly informed him of the consequences of pleading guilty.26
The SJC arrived at its conclusion by exercising its authority under Danforth to define its own standard—independent of that used by the Supreme Court in Chaidez—to evaluate the retroactive effect of Padilla. After surveying the Supreme Court’s retroactivity jurisprudence, the SJC characterized Teague and its progeny as establishing different definitions for what constitutes a new rule. The SJC rejected the “apparent to all reasonable jurists” standard and adopted what it characterized as the “original” Teague standard—that is, a case announces a new rule only when precedent does not dictate the result.27 Under this narrowed retroactivity framework, the SJC reached the same conclusion as it did in Clarke for the same reasons: Padilla did not announce a new rule because Strickland dictated the result. The SJC asserted that Strickland is a general standard intended to evolve with prevailing professional norms and that Padilla was simply the Supreme Court’s recognition that professional norms now demand that defense counsel advise their clients on the immigration consequences of pleading guilty.
Retroactivity in the Realm of Criminal Law: Finality Versus Fairness
The question of whether to give convicted criminals additional constitutional rights by applying them retroactively poses a conflict between the fundamental values of ensuring the finality of criminal convictions and treating similar defendants the same. Our criminal justice system is premised on the idea that all convictions are final not only to protect the integrity of jury trials, but also to avoid draining the government’s resources by forcing it to continually relitigate cases.28 Some courts have warned that applying Padilla retroactively would open the floodgates to an overwhelming number of appeals by noncitizen convicts, creating an unmanageable administrative burden for courts.29 Moreover, allowing for the retrying of cases from years ago creates the potential for factually guilty defendants to go unpunished because the government is unable prove its case again without the same witnesses available.
On the other hand, considerations of fairness and justice are nowhere higher than when individual liberty and constitutional rights are at stake. Deciding that a criminal defendant on one day is entitled to certain legal advice, but a day earlier would not have been entitled to that same advice, seems unacceptably arbitrary given that such advice may be the difference between remaining in the United States and being deported. Such a result seems even less fair considering that deportation may, in many instances, be a grossly disproportionate punishment for the crime charged.30 Additionally, Strickland remains a high standard that any noncitizen hoping to challenge their conviction under Padilla must still hurdle, which may mitigate the number of frivolous Padilla appeals and the possibility of guilty defendants going free.
In Sylvain, the SJC decided that the concerns over fairness demanded that Padilla rights be made available to all defendants convicted under the current federal deportation laws and outweighed the potential costs of relitigating convictions. In Massachusetts, the most obvious consequence of Sylvain is that noncitizen defendants who pled guilty during the fourteen years before Padilla may now bring ineffective assistance claims if their lawyer did not advise them on the immigration consequences of pleading guilty. Although, as the SJC noted, it was already the norm in Massachusetts to advise defendants on the immigration consequences of pleading guilty, Sylvain reaffirms for the defense bar that the deportation warning given during a plea colloquy does not sufficiently alert defendants to the risks of pleading guilty.31 Thus, defendants may utilize Padilla on both Sixth Amendment and Article XII grounds. A less obvious consequence of Sylvain is that Massachusetts now has a new, albeit largely similar, retroactivity standard under which the SJC will analyze all future rulings on constitutional matters of criminal procedure.32
If nothing else, Sylvain demonstrates the unique balance between state and federal law that defines the United States’ federal system. Massachusetts is the first state to sidestep Chaidez and apply Padilla retroactively as a matter of state law, as the six other state supreme courts to face this issue have all affirmed Chaidez.33 States that have yet to decide the issue may look to Massachusetts, as a case study, on whether the floodgates open and how many constitutionally infirm pleas are remedied that otherwise would not have been. Sylvain could serve as a beacon that leads other states to exercise their authority under Danforth to define their own retroactivity standards and apply Padilla retroactively; particularly in those states that declared Padilla retroactive prior to Chaidez. If Sylvain remains an outlier, it will nevertheless continue to serve as an important reminder of the distinction between the existence of a constitutional right and its procedural availability.
Evan M. O’Roark, Case Note, The Massachusetts Supreme Judicial Court Contravenes United States Supreme Court in Sylvain, Ruling Padilla Rights Apply Retroactively, 1 Suffolk U. L. Rev. Online 98 (Dec. 3, 2013), http://www.suffolklawreview.org/oroark-sylvain.
In criminal cases, restitution for victims is typically limited to the losses that the defendant caused in the commission of the crime.1 Title 18, section 2259 of the United States Code requires courts to order restitution for victims of sexual crimes against children in “the full amount of the victim’s losses.” In United States v. Kearney, a case of first impression, the United States Court of Appeals for the First Circuit considered whether a person depicted in child pornography was entitled to restitution under § 2259 from someone who had criminally possessed, distributed, and transported that pornography. The First Circuit concluded that the victim’s injuries were proximately caused by the defendant’s use of the pornography, and upheld the district court’s restitution order. . .