Collateral consequences of criminal charges
Encyclopedia
Collateral consequences of criminal conviction, commonly referred to as the "Four C's" are the additional civil state penalties, mandated by statute, that attach to criminal convictions. They are not part of the direct consequences of criminal conviction, such as incarceration, fines, and/or probation. They are the further civil actions by the state that are triggered as a consequence of the conviction. In general, all the states impose these actions. They include loss or restriction of a professional license, ineligibility for public funds including welfare benefits and student loans, loss of voting rights, ineligibility for jury duty, and deportation for immigrants, including those who, while not U.S. citizens, hold permanent resident status.
In all jurisdictions throughout the U.S., judges are not obligated to warn of these collateral consequences upon a finding of guilt by trial, or prior to an admission of guilt by plea agreement, except as regards deportation. Deportation has been made an exception by the Supreme Court in Padilla v. Commonwealth of Kentucky.
to defendants accused of committing a crime
. If found guilty, or if the defendant
pleads guilty, the sentencing authority (usually a judge
) imposes a sentence
. The sentence is a direct consequence of the conviction.
This sentence can take many forms, some of which being loss of privileges (e.g. driving), house arrest, community service, probation, fines and imprisonment. Collectively, these consequences of the crime are referred to as direct consequences - those intended by the judge, and frequently mandated at least in part by an applicable law
or statute
.
However, beyond the terms of the sentence, a defendant can experience additional state actions that are considered by the States to be collateral consequences such as: disenfranchisement
(in some countries this may be separately meted out), disentitlement of education loans (for drug charges in U.S.), loss of a professional license
, or eviction from public housing. These consequences are not imposed directly by the judge, and are beyond the terms of a sentence itself for the actual crime. Instead, they are civil state actions and are referred to as collateral consequences. In most jurisdictions, being charged with a crime can trigger state civil action in the form of an investigation to determine if the charge(s) trigger the civil statutes that attach to the criminal charges. An example would be criminal charges that can trigger deportation, or the revocation of a professional license, such as a medical, nursing, or pharmacist license.
The collateral consequences of criminal conviction are not the same as the social consequences of conviction. Social consequences include loss of a job and social stigma. These social effects of criminal charges (whether or not they lead to convictions) are mainly because arrests and legal proceedings in the United States are usually public record, thus disseminating the information about the event to the public to the detriment of the accused. There are currently little to no legal remedies available for these collateral consequences, no matter how innocent the accused individual might be.
For purposes of illustration, the Public Defender
Service of the District of Columbia assembled a document in 2004 outlining some collateral consequences.http://www.reentry.net/library/item.121665-Collateral_Consequences_of_Criminal_Convictions_in_the_District_of_Columbia
Any convicted person would expect social stigma and disapproval, lessened desirability by employers, decreased trust by the community and other consequences for the commission of criminal conduct. Further, many collateral consequences of criminal charges are the result of private behavior and conduct by private individuals and organizations, and thus not necessarily appropriate for government control. In addition, in many instances those who engage in criminal conduct can easily foresee and predict likely collateral consequences. For instance, a bookkeeper who embezzles should expect that other businesses tend to distrust a convicted embezzler to manage their money.
The Supreme Court of the United States
addressed collateral consequences of criminal convictions as early as 1984. In Strickland v. Washington
, 466 U.S. 668 (1984), the Supreme Court explored ineffective assistance of counsel
with respect to collateral consequences of criminal convictions. In evaluating competence, the Court explained, judges should look at all relevant circumstances and evidence of appropriate measures of professional behavior, such as the ABA Standards for Criminal Justice ("ABA Standards"). The ABA Standards require defense lawyers to consider collateral consequences of conviction. Judges, accordingly, should monitor the performance of counsel. States chose to apply this rule in varying ways.
Strickland encouraged but did not mandate consideration of collateral consequences. Some claim that structural incentives exist for lawyers to not elicit information relevant to collateral consequences because doing so may prolong a case; others note that no attorney or judge could predict any and all collateral consequences of a criminal conviction. Since Strickland did not require an analysis of collateral consequences, they generally are not regarded as cause to overturn criminal convictions.
Most states do not accord much legal effect to the collateral consequences of criminal convictions. For example, in New York
the consideration of collateral consequences is merely discretionary, while the elucidation of direct consequences is required. For instance, in People v. Fordhttp://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ny&vol=086&invol=0397, 86 N.Y.2d 397 (N.Y. 1995). New York's highest court held that a defendant's guilty plea would not be overturned on learning that the defendant was not advised at the time of the plea that his conviction could result in his deportation. However, “[W]e now hold that counsel must inform her client whether his plea carries a risk of deportation.” PADILLA v. KENTUCKY 559 U. S. ____ (2010). The U.S. Supreme Court held that the collateral consequence of deportation was a consequence of such great importance that failure by counsel to advise the defendant of deportation is ineffective assistance of counsel which is a constitutional protection under the Sixth Amendment. This advise about deportation is now the law of the land and required in all fifty states.
Likewise, the Kentucky Supreme Court
in Commonwealth v. Fuartado, 170 S.W.3d 384 (Ky. 2005) held that the failure of defense counsel to advise a defendant of potential deportation did not give rise to a claim of ineffective assistance of counsel.
In May 2005, Chief Judge Judith S. Kaye of the New York State Court of Appeals, organized the Partners in Justice Colloquium to address this issue.http://www.nycourts.gov/ctapps/ Judge Kaye formed a working group which, in partnership with the Lawyering in the Digital Age Clinic at the Columbia University Law School, created a site that, for the first time, collects academic works, court opinions, and professionals' resources (by virtue of a message board and database) in one place. The Columbia University Law School in collaboration with the Columbia Center for New Media Teaching and Learning CCNMTL developed and recently released a calculator
for looking up and comparing collateral consequences of criminal charges in New York State.
In Federal law, the federal sentencing guidelines
have a model for collateral consequences which is determined by the date of when the offense was committed and by the type of the offense.
In all jurisdictions throughout the U.S., judges are not obligated to warn of these collateral consequences upon a finding of guilt by trial, or prior to an admission of guilt by plea agreement, except as regards deportation. Deportation has been made an exception by the Supreme Court in Padilla v. Commonwealth of Kentucky.
Introduction
The criminal justice system applies criminal lawCriminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
to defendants accused of committing a crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
. If found guilty, or if the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
pleads guilty, the sentencing authority (usually a judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
) imposes a sentence
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...
. The sentence is a direct consequence of the conviction.
This sentence can take many forms, some of which being loss of privileges (e.g. driving), house arrest, community service, probation, fines and imprisonment. Collectively, these consequences of the crime are referred to as direct consequences - those intended by the judge, and frequently mandated at least in part by an applicable law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
or statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
.
However, beyond the terms of the sentence, a defendant can experience additional state actions that are considered by the States to be collateral consequences such as: disenfranchisement
Felony disenfranchisement
Felony disenfranchisement is the term used to describe the practice of prohibiting people from voting based on the fact that they have been convicted of a felony or other criminal offence...
(in some countries this may be separately meted out), disentitlement of education loans (for drug charges in U.S.), loss of a professional license
Licensure
Licensure refers to the granting of a license, which gives a "permission to practice." Such licenses are usually issued in order to regulate some activity that is deemed to be dangerous or a threat to the person or the public or which involves a high level of specialized skill...
, or eviction from public housing. These consequences are not imposed directly by the judge, and are beyond the terms of a sentence itself for the actual crime. Instead, they are civil state actions and are referred to as collateral consequences. In most jurisdictions, being charged with a crime can trigger state civil action in the form of an investigation to determine if the charge(s) trigger the civil statutes that attach to the criminal charges. An example would be criminal charges that can trigger deportation, or the revocation of a professional license, such as a medical, nursing, or pharmacist license.
The collateral consequences of criminal conviction are not the same as the social consequences of conviction. Social consequences include loss of a job and social stigma. These social effects of criminal charges (whether or not they lead to convictions) are mainly because arrests and legal proceedings in the United States are usually public record, thus disseminating the information about the event to the public to the detriment of the accused. There are currently little to no legal remedies available for these collateral consequences, no matter how innocent the accused individual might be.
For purposes of illustration, the Public Defender
Public defender
The term public defender is primarily used to refer to a criminal defense lawyer appointed to represent people charged with a crime but who cannot afford to hire an attorney in the United States and Brazil. The term is also applied to some ombudsman offices, for example in Jamaica, and is one way...
Service of the District of Columbia assembled a document in 2004 outlining some collateral consequences.http://www.reentry.net/library/item.121665-Collateral_Consequences_of_Criminal_Convictions_in_the_District_of_Columbia
Efforts to include collateral consequences in sentencing
If a defendant is punished beyond the sentence prescribed by law (that is, if collateral consequences do occur), the punishment is then more severe than that intended or warranted. In the worst case, this might violate constitutional protections such as the right to work.Any convicted person would expect social stigma and disapproval, lessened desirability by employers, decreased trust by the community and other consequences for the commission of criminal conduct. Further, many collateral consequences of criminal charges are the result of private behavior and conduct by private individuals and organizations, and thus not necessarily appropriate for government control. In addition, in many instances those who engage in criminal conduct can easily foresee and predict likely collateral consequences. For instance, a bookkeeper who embezzles should expect that other businesses tend to distrust a convicted embezzler to manage their money.
The Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
addressed collateral consequences of criminal convictions as early as 1984. In Strickland v. Washington
Strickland v. Washington
In Strickland v. Washington, , the United States Supreme Court established a two-part test for establishing a claim of ineffective assistance of counsel...
, 466 U.S. 668 (1984), the Supreme Court explored ineffective assistance of counsel
Ineffective assistance of counsel
Ineffective assistance of counsel is an issue raised in legal malpractice suits and in appeals in criminal cases where a criminal defendant asserts that their criminal conviction occurred because their attorney failed to properly defend the case...
with respect to collateral consequences of criminal convictions. In evaluating competence, the Court explained, judges should look at all relevant circumstances and evidence of appropriate measures of professional behavior, such as the ABA Standards for Criminal Justice ("ABA Standards"). The ABA Standards require defense lawyers to consider collateral consequences of conviction. Judges, accordingly, should monitor the performance of counsel. States chose to apply this rule in varying ways.
Strickland encouraged but did not mandate consideration of collateral consequences. Some claim that structural incentives exist for lawyers to not elicit information relevant to collateral consequences because doing so may prolong a case; others note that no attorney or judge could predict any and all collateral consequences of a criminal conviction. Since Strickland did not require an analysis of collateral consequences, they generally are not regarded as cause to overturn criminal convictions.
Most states do not accord much legal effect to the collateral consequences of criminal convictions. For example, in New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
the consideration of collateral consequences is merely discretionary, while the elucidation of direct consequences is required. For instance, in People v. Fordhttp://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ny&vol=086&invol=0397, 86 N.Y.2d 397 (N.Y. 1995). New York's highest court held that a defendant's guilty plea would not be overturned on learning that the defendant was not advised at the time of the plea that his conviction could result in his deportation. However, “[W]e now hold that counsel must inform her client whether his plea carries a risk of deportation.” PADILLA v. KENTUCKY 559 U. S. ____ (2010). The U.S. Supreme Court held that the collateral consequence of deportation was a consequence of such great importance that failure by counsel to advise the defendant of deportation is ineffective assistance of counsel which is a constitutional protection under the Sixth Amendment. This advise about deportation is now the law of the land and required in all fifty states.
Likewise, the Kentucky Supreme Court
Kentucky Supreme Court
The Kentucky Supreme Court was created by a 1975 constitutional amendment and is the state supreme court of the commonwealth of Kentucky. Prior to that the Kentucky Court of Appeals was the only appellate court in Kentucky...
in Commonwealth v. Fuartado, 170 S.W.3d 384 (Ky. 2005) held that the failure of defense counsel to advise a defendant of potential deportation did not give rise to a claim of ineffective assistance of counsel.
In May 2005, Chief Judge Judith S. Kaye of the New York State Court of Appeals, organized the Partners in Justice Colloquium to address this issue.http://www.nycourts.gov/ctapps/ Judge Kaye formed a working group which, in partnership with the Lawyering in the Digital Age Clinic at the Columbia University Law School, created a site that, for the first time, collects academic works, court opinions, and professionals' resources (by virtue of a message board and database) in one place. The Columbia University Law School in collaboration with the Columbia Center for New Media Teaching and Learning CCNMTL developed and recently released a calculator
Collateral Consequences Calculator
The Collateral Consequences Calculator is a legal website designed to aid judges, attorney, and legal academics in their research of collateral consequences of criminal charges. It is currently being developed as a joint project between students in the Lawyering in the Digital Age Clinic at...
for looking up and comparing collateral consequences of criminal charges in New York State.
In Federal law, the federal sentencing guidelines
Federal Sentencing Guidelines
The Federal Sentencing Guidelines are rules that set out a uniform sentencing policy for individuals and organizations convicted of felonies and serious misdemeanors in the United States federal courts system...
have a model for collateral consequences which is determined by the date of when the offense was committed and by the type of the offense.