The Collateral Consequences of a Conviction
This introduction was written by Attorney Sheri Pewitt for a continuing legal education (CLE) presentation she gave to attorneys about the collateral consequences of convictions. It is posted here for the benefit of anyone wanting to learn more about the topic.
The consequences of a conviction have dramatically increased, alongside the widespread availability of arrest records online. Any criminal conviction, however small, triggers a convoluted network of federal, state and agency consequences that can affect nearly every aspect of a person's life, including eligibility for social services, professional licenses, housing, student loans, academic scholarships, parental rights, immigration status, and employment. Most of the consequences are “silently” and automatically imposed. Most last a lifetime and provide no method for relief. A person's subsequent behavior, community contributions and/or personal achievements cannot remove or alter these collateral consequences. Not only are there more convictions today, but there is also far more to lose because of them.
A collateral consequence is any adverse legal effect of a conviction that is not a part of a sentence. Fines and prison time, for example, are part of a sentence. The loss of food stamp benefits or public housing assistance, on the other hand, is a possible collateral consequence. It's a consequence that the judge does not pronounce at sentencing but nevertheless occurs due to the conviction.
These consequences may come as a shock to some defendants. Many defendants are not even told about them by either the judge or their attorney before they accept a plea offer. However, these consequences can sometimes be worse than the sentence itself, jeopardizing a person's ability to support his or her family or maintain a livelihood. Despite these high stakes, many defendants accept plea offers with significant consequences they are completely unaware of. This manual aims to educate assistant individuals accused of crimes, defense attorneys and prosecutors about some of these consequences.
From the moment of arrest, people are in danger of losing the right to travel freely, hard-earned jobs, stable housing, basic public benefits, and even their right to live in this country. Recently, this landscape has changed drastically for the worse. The steady accumulation of collateral sanctions has combined with the exponential increase in the availability of criminal history data to create a “perfect storm.”
Recognizing this landscape, we must redefine “reentry” as a process that begins at arrest and continues through community reintegration. This shift in the paradigm of reentry and collateral consequences highlights the substantial role that criminal defense attorneys can play in the process and expands the focus beyond incarceration, so that it encompasses the consequences of criminalization faced by individuals from the moment they come in contact with the criminal justice system.
The True Consequences of a Criminal Conviction and the Lawyer's Duty
Prosecutor: How much should the prosecutor consider consequences that are “peculiar to the individual and generally result from actions taken by agencies” not within the court or their control? While it is expected that the defense counsel will investigate and advise a defendant regarding the consequences of criminal convictions, practically and ethically, the prosecutor should also consider the effects of collateral consequences during the prosecution of a criminal case. The ethical prosecutor appreciates the importance of objectivity and fairness in prosecution. A wise and ethical prosecutor wants a defendant to have the most effective assistance of counsel during all stages of the criminal litigation. This not only protects convictions from subsequent litigation, but more importantly it furthers the interests of justice. Additionally, a just and fair prosecutor will consider the collateral consequences that may apply in a particular case and take them into account when considering a disposition.
How can prosecutors help prevent unjust collateral consequences that follow a criminal conviction?
- Dispositions That Avoid Incarceration and a Criminal Record. Prosecutors should be made aware of possible collateral consequences that may apply and factor them into disposition considerations. Offenders, especially first-time offenders, who commit minor or non-violent offenses and therefore risk losing their professional licenses or employment, should be afforded an opportunity of a more favorable disposition.
- Immigration Consequences. Prosecutors should receive training on the possible immigration consequences of criminal convictions. In Padilla v. Kentucky, the United States Supreme Court held that a defense attorney is required to provide competent legal advice to a non- citizen defendant regarding the immigration consequences of a guilty plea. A defendant who pled guilty without such advice may raise a claim of ineffective assistance of counsel and may be entitled to have his or her conviction vacated.6 Prosecutors should consider offering a disposition that will not affect the defendant's immigration status where there is no indication that an immigrant defendant poses a danger to the community.
- Alternatives to Incarceration Programs. Prosecutors should support programs designed to divert addicted non-violent misdemeanor and felony drug offenders into treatment and rehabilitation plans. Effective drug diversion programs are critical in minimizing public safety risks, maximizing the likelihood of success of those in treatment, and reducing repeat offenses. They also accommodate individuals with special needs, including, offenders with mental health issues, adolescents and young adults.
- Re-entry Programs. It is well documented that the majority of offenders who are re-arrested for crimes are unemployed at the time of their re-arrest. Eighty-nine percent of recidivists who violate the terms of their parole or probation are unemployed at re-arrest. The absence of gainful employment is the most apparent cause of recidivism. One of the most common collateral consequences and a significant barrier to obtaining sustainable employment is the discretionary denial of employment or professional licenses based solely on prior convictions. We have all read about ex-offenders who have been thwarted in their efforts to start a new life because of their past. For example, there is the formerly incarcerated offender who received barbering training but was unable to obtain a license in his trade be- cause of his prior conviction or the graduate student unable to obtain a professional license because of a regrettable youthful mistake. For these ex-offenders, after they complete their sentences, they will continue to suffer the consequences of their convictions. As part of a crime reduction strategy, prosecutors should support programs that enable offenders to successfully re-enter society. A successful re-entry program ultimately improves public safety and reduces recidivism. The primary duty as prosecutors is to ensure justice and protect the public from crime. In keeping with that mission, prosecutors must also consider the collateral consequences of the convictions we obtain to ensure that justice is achieved.
The Obligations of the Criminal Defense Attorney
Defense attorneys have an ethical and constitutional obligation to provide effective assistance of counsel to their clients. This goes beyond investigating a case, conveying a plea offer, and preparing for trial. An attorney also has the constitutional obligation to advise a client about certain consequences of a conviction that go beyond the pronounced sentence.
The Supreme Court has emphasized that it has “never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance'” under the Sixth Amendment. The defendant must be made aware of certain “severe” consequences that are collateral, yet nevertheless “certain” to result from the conviction.
In other words, advising the defendant about collateral consequences is not going above and beyond the call of duty. It is a part of the constitutional duty to provide competent advice to the client. As the American Bar Association has recognized, a zealous and effective defense attorney should make every effort to learn about these collateral consequences; advise his or client about them; and work to mitigate or avoid the consequences if at all possible.
But does a defense attorney have a legal duty to advise the client as to all the consequences that might result from the plea? Are defense attorneys obligated to give advice concerning the possibility that a client's professional license will be the subject of sanctions by accepting the plea? And if defense counsel fails to provide adequate guidance, can counsel be held liable for malpractice? It turns out that these are tricky questions.
There Must Be a Duty to Provide Counsel
Washington evaluates the validity of a guilty plea by determining if it was made voluntarily. A defendant must be “fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor or his own counsel” to ensure a full understanding of what he or she is doing and what the plea actually means. “Consequences,” as used in this context, come in at least two forms: (1) direct, which is to say they are meaningful and the defendant must be advised, and (2) collateral, in which case there is no requirement to give advice.
How do we determine which type of consequence is involved in a particular matter? If the consequence is one that “has a definite, immediate and largely automatic effect on the defendant's punishment,” it is said to be direct and the failure to warn can support a motion for a hearing to determine if the plea should be vacated on the grounds that the defendant was thereby prejudiced. A collateral consequence is one that has “a result peculiar to the individual and generally results from the actions taken by agencies the court does not control.” The obligation to advise/warn about a direct consequence is the same whether or not a defendant is represented by counsel, which is to say that the court is obliged to give warning.
Direct and Collateral Analysis
The direct/collateral analysis applies to cases involving the failure to warn as distinguished from a claim that the guilty plea came about because of the defendant being misadvised. The latter situation calls for a different analysis. In Strickland v. Washington, the Supreme Court established a two-pronged test to determine the impact of “deficient” representation: (1) that the representation was deficient, meaning that “counsel made errors so serious that counsel wasn't functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment,” and (2) that the representation prejudiced the outcome, which is to say the errors were so serious as to deny the defendant a fair trial and thereby render the outcome unreliable. If these elements are satisfied, the judgment can be vacated and a new trial ordered.
Padilla v. Kentucky
Early in 2010 the U.S. Supreme Court weighed in, finding that in a case involving deportation there was no need to evaluate the consequence as being either direct or collateral. Instead, in Padilla v. Kentucky, the Court concluded that because deportation is “uniquely difficult” to classify as either direct or collateral, these standards are “ill-suited” for evaluating a claim that an attorney's advice was deficient, at least for purposes of determining if post-conviction relief is available. In the opinion for the Court, Justice Stevens gave great emphasis to the “presumptively mandatory” nature of the removal statute, “the close connection to the criminal process,” and the straightforward, truly clear and certain consequences of a plea leading to the conclusion that Padilla was entitled to a hearing to determine if the advice he had received prejudiced his decision to plead guilty. In addition, the Court indicated that, for purposes of evaluating a claim where “but for” the faulty advice the defendant wouldn't have accepted the plea, a court should take into account the desire of a defendant to look beyond the criminal consequences because of a value judgment by the defendant. In Padilla, the Court took note of the value a defendant might give to remaining in the United States when weighed against having a criminal record.
In sum, for matters involving a guilty plea, Padilla appears to create a first-tier standard for the evaluation of a claim for post-judgment relief based on constitutionally deficient legal advice. Where the consequence is found to be presumptively mandatory and closely connected to the criminal process, it can be said to be “uniquely difficult” to classify it as either direct or collateral, thereby rendering those standards “ill suited” for the task and entitling a defendant to a hearing to determine if deficient advice prejudiced the taking of a guilty plea.
What Padilla doesn't resolve is what other circumstances, if any, are likely to be deemed “uniquely difficult” so as to be sufficient to avoid the direct/collateral analysis. For example, does the consequence of a sanction against a professional license rise to the level requiring a Padilla analysis? And if so, why?
Does a Sanction Against a Professional License Trigger Application of Padilla Rules?
Padilla seems to suggest that the determination concerning deportation involves four elements:
- The law relative to the consequences must be succinct and clear.
- There must be a presumption that the consequence is mandatory.
- The consequences must have a close connection to the criminal process.
- The defendant must be unable to divorce the consequence from the criminal process because of a value judgment of the defendant.
Six Critical Questions for Assessing Consequences
Some of the consequences —such as the loss of a public benefit—can have an immediate impact on accused persons and their families. Other consequences, however, may be impossible to identify as issues before a criminal case reaches disposition. For instance, a person charged with a crime may not be aware that he or she will one day aspire to enter a profession for which being convicted of that crime is disqualifying.
Six questions can help individuals and their attorneys identify the consequences most likely to impact their decision-making process as a case moves toward disposition.
- How are you employed?
In many professions, certain charges or convictions can result in losing a license or certificate necessary to work. Asking this question can help identify whether an individual works in a field likely to track and care about criminal activity. Students can be asked about their fields of study and their plans after finishing school.
- Do you have strong ties or regular reason to travel to other countries?
In addition to possible family ties in other countries, any professions require the ability to travel internationally. Explore how travel restrictions might impact the accused.
- Do you receive any public benefits?
Eligibility for many public benefits can be lost upon conviction for certain crimes. Asking this question can identify whether individuals are at risk of losing critical support, either for themselves or for their families.
- What is your family situation?
Some types of convictions can impair an individual's ability to be a part of his or her family, especially when children are involved. Asking about family can identify whether family relationships are a concern.
- Do you own, or will you want to own, any firearms?
Any felony conviction or a misdemeanor conviction involving domestic violence can leave an individual permanently unable to possess a firearm. Asking this question can both determine whether firearm ownership is a concern and warn against future charges for unlawful possession of a weapon.
- Are you a United States citizen? Where were you born?
Non-citizens charged with crimes are often at risk of either being deported or being deemed inadmissible (thus prohibiting future entry into the United States). Asking these questions can determine whether immigration status is a necessary concern. Asking about place of birth is a good starting point to determine citizenship because some clients may not be sure of citizenship or immigration status.