Update on Padilla Retroactivity

Hard to believe we are already in March and quickly closing in on April of 2012.  The biggest news thus far on the Padilla retroactivity front, and most followers of the issue have presumably already read about this, is the decision by the New Jersey Supreme Court in the Gaitan matter which held that Padilla announced a “new rule” and therefore could not be applied retroactively.  Two justices dissented, arguing that Padilla could be applied retroactively.  Here in the Eleventh Circuit, where I practice, the Court of Appeals has come close to but, for one reason or another, has avoided deciding the question of whether Padilla can be applied retroactively.  Just as well since the Supreme Court may still decide the issue, if not this term, then perhaps the next one.  In fact, the  attorneys in the Chaidez matter — the case before the Supreme Court which presents the issue of Padilla retroactivity — are still briefing the issue of whether the Supreme Court should grant cert. in that case.  The Government’s response to the petition for cert. is due on March 30th.

Since we’re on the subject of the Supreme Court, mention should be made of its two decisions issued this past week, Frye and Lafler, concerning the constitutional duty of a lawyer when representing a client during plea bargain proceedings.  I cannot comment substantively on the decision since I have yet to read them.  However, it has been interesting to see how the decisions have been covered by the media, with some proclaiming them the biggest development since Gideon in terms of enhancing the constitutional rights of criminal defendants.  Not to mention the equally superlative observations, made by the justices themselves, among others, that Lafler and Frye will create a flood of litigation in the courts in which prisoners and ex-offenders will seek to undo a plea on the allegation that the attorney mucked up the plea bargaining process.  I do not believe that the predictions inherent in either of these claims will become reality as litigants and, in turn, the courts, make their way through this latest thicket of constitutional jurisprudence.  For one, it is the rare case that sharply split decisions, as Frye and Lafler certainly were, are interpreted by the lower courts as creating the kind of monumental shift or constitutional mandate that come with decisions involving greater judicial unanimity.  Not that a 5-4 decision can never establish a bedrock principle of constitutional law.  Look at Miranda v. Arizona for example, a sharply split decision that has gone on to become an almost indelible component of modern criminal procedure, despite many, with some nearly successful (i.e., Dickerson), challenges to its viability.  My fear, however, is that, in light of the love fest surrounding Frye and Lafler, the pushback against those cases by those who disagree with their core holdings may result not only in their demise as good law but also roll back what few constitutional rights criminal defendants had before Frye and Lafler became law.  I hope that will not be the case, but I am wary.  One thing courts fear more than criminals not serving enough time behind bars for their misdeeds is the prospect of having to entertain requests for postconviction relief by those criminals, a very likely scenario if one is believe the detractors and even the supporters of the Frye and Lafler decisions.