Reports from the first few days of argument in the new Supreme Court term suggest that Justice Sonia Sotomayor has settled comfortably into her role on the bench. That's a good thing because the former prosecutor will be challenged this term to decide some of the most contentious criminal cases to come before the court in years. I profiled two cases before the court this term that raise the question of whether it is unconstitutional to sentence juvenile offenders to life in prison without parole.
Today we question what constitutes effective assistance of counsel. An issue that the court will have to confront in a number of cases, including one which raises the question of whether failure to correctly inform a criminal defendant about the collateral consequences of accepting a guilty plea constitutes ineffective assistance of counsel.
The court’s decision in this case could drastically change the kind of information that must be provided to criminal defendants before they accept a guilty plea—including that accepting a plea may result in a loss of voting rights in certain states, ineligibility for student loans and public housing, or in the case of the defendant in the case before the court, deportation. The petitioner Jose Padilla (no, not that Jose Padilla) is a permanent legal resident of the U.S. who’s lived in the U.S. for 40 years and served in the U.S. Army.
He was told by his attorney that accepting a guilty plea would not affect his immigration status, when in fact his deportation was mandatory under existing federal law. Another case, out of Alabama, raises the question of whether the failure of an inexperienced trial attorney in a death penalty case to provide any testimony of factors that might mitigate the imposition of a death sentence, constitutes ineffective assistance of counsel.
The court’s criminal docket this year will provide an opportunity for the court to explore the parameters of some of its earlier decisions. For example, the reach of Roper v. Simmons, in which the court decided that the imposition of the death penalty on juveniles violates the 8th Amendment prohibition against “cruel and unusual punishment,” will be decided by Graham and Sullivan. In striking down the death penalty for juveniles, the court in Roper recognized that “our society views juveniles … as categorically less culpable than the average criminal.” Life without parole is its own kind of death sentence when applied to an adolescent. It will be interesting to see whether and how the court draws distinctions between its death penalty jurisprudence and Graham/Sullivan.
The court’s decision on what constitutes ineffective assistance of counsel in death penalty cases has also been the focus of some controversy, including Bell v. Cone, the 2002 decision in which the court held that the failure of defense counsel to give a closing argument—the last chance to persuade a jury—in a death penalty case might have been a strategic decision by counsel, and not evidence of ineffective assistance of counsel.
The addition of Justice Sotomayor, a former prosecutor who hews closely to the record created by counsel at trial, may make it hard to predict the outcome of these cases along predictable 5-4 ideological lines. With the exception of Justice Sotomayor, this court is short on justices with extensive criminal practice experience. Bell v. Cone, for example, was an 8-1 decision which has been reviled by criminal defense practitioners as evidence of a court hopelessly out of touch with standard criminal defense practice in capital cases.
Justice Sotomayor’s understanding of how criminal cases are litigated, and her trial judge’s allegiance to the four corners of the record developed by counsel at trial, may prove to be a critical contribution to the court’s response to some of these cases.
Sherrilyn Ifill, a professor of law at the University of Maryland, is a regular contributor to The Root.