Collateral consequences of criminal conviction
||This article has an unclear citation style. (July 2010)|
|Part of the common law series|
|Element (criminal law)|
|Scope of criminal liability|
|Seriousness of offense|
|Offence against the person|
|Crimes against property|
|Crimes against justice|
|Defences to liability|
|Other common law areas|
Collateral consequences of criminal conviction in the United States, 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.
The criminal justice system applies criminal law 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. Being subject to collateral consequences has been called a form of civil death.
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[verification needed], 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.
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.
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. However, some argue that the Constitution should require consideration of collateral consequences.
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. Ford , 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 advice 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. 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.
- Loss of rights due to felony conviction
- Padilla v. Commonwealth of Kentucky
- Penal labor in the United States
- Strickland v. Washington
- People v. Ford
- Commonwealth v. Fuartado, 170 S.W.3d 384 (Ky. 2005)
- The Collateral Consequences Calculator
- ABA Standards for Criminal Justice: Collateral Sanctions and Discretionary Disqualification of Convicted Persons (3d ed. 2004)
- Uniform Law Commission, Uniform Collateral Consequences of Conviction Act (2009)
- Gabriel J. Chin, Race, The War on Drugs, and the Collateral Consequences of Criminal Conviction,6 Journal of Gender, Race & Justice 253 (2002)
- Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 U. Penn. L. Rev. 1789 (2012)
- 466 U.S. 688 (1984)
- Gabriel Chin & Richard W. Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell Law Review 607 (2002)
- Collateral Consequences of Criminal Conviction, New York State