Robert M.A. Johnson
Collateral Consequences
In the performance of our duties as prosecutors, should we as prosecutors consider the consequences of the accused outside of the justice system, that are imposed upon conviction as a matter of law?
Increasingly we see situations in which the collateral consequences of a criminal conviction exceed the consequences that are imposed by a judge upon sentencing. You know some of the examples. A foreigner legally in this country for many years, who may be married to a U.S. citizen and/or parent of U.S. citizens, can be deported for relatively minor offenses. In many circumstances, a person who strikes any member of his or her household is technically barred by operation of law from possessing a firearm—forever.
In our traditional criminal justice system, the court sentences offenders to jail or prison terms, a fine, probation and related conditions of probation. When probation is complete, as far as the criminal justice system is concerned, the offender has done the time and paid his or her debt to society.
However, today's offenders learn that they have only begun to suffer the consequences of their convictions after they have satisfied their sentences. State legislators and members of Congress, often motivated by public response to highly publicized cases, have opened the dam on a stream of laws that impose subsequent consequences on those convicted of particular crimes. These collateral consequences are in addition to the sentencing consequences enforced in the courtroom, and, unlike the judicial sentence, they do not consider the circumstances of an individual offender or offense and often they are lifetime consequences. The consequences vary from state to state, but they generally relate to voting, occupational licensing, vehicle licensing, firearm restrictions, offender registration, civil forfeitures and welfare benefits. Federal collateral consequences are much the same as those imposed by state law with the addition of deportation.
Concern about this phenomenon appears on two levels. On a societal level, a problem arises when the degree of these collateral consequences reduces the possibility that convicts can return to be productive members of our society. In these cases we have effectively created a subclass of citizens who, even after doing what they were ordered to by a judge, are barred from some jobs, unable to drive, disenfranchised from the vote and continually labeled as criminals. To no one's surprise, they may believe they have no recourse but to continue to live outside the law.
On the practical level, as prosecutors, we see the effects of these collateral consequences. When the consequences are significant and out of anyone's control, victims of criminal conduct are less likely to cooperate. Defendants will go to trial more often if the result of a conviction is out of the control of the prosecutor and judge and is disproportionate to the offense and offender. Judges often consider the collateral consequences of a conviction. When the consequences are too severe, many judges change their rulings, sentencing felonies as misdemeanors and expunging records to avoid what they believe to be an unjust result. A judge in my jurisdiction once allowed a felon to withdraw his plea of guilty after he served his prison sentence to avoid a deportation.
Our job, our duty, is to seek justice. (See NDAA National Prosecution Standards 1.1.) How can we ignore a consequence of our prosecution that we know will surely be imposed by the operation of law? These collateral consequences are simply a new form of mandated sentences. Prosecutors have often favored mandated sentences to counter the tendencies of some judges who seem incapable of giving serious consequences for serious crimes. With mandatory sentencing, however, we can still seek justice in how we charge or bargain a particular case. These collateral consequences cannot easily be charged or bargained away when justice requires them. But we must consider them if we are to see that justice is done. This struggle for justice was evident in the mind of a highly respected district attorney in a major jurisdiction when he shared his agony in deciding the fate of a father who abused his child. This father, after all, would be deported upon conviction, destroying a family that the district attorney and the victim's family thought could be saved.
The efforts of prosecutors and judges do not fully deal with the problem. At times, the collateral consequences of a conviction are so severe that we are unable to deliver a proportionate penalty in the criminal justice system without disproportionate collateral consequences. There must be some reasonable relief mechanism. It is not so much the existence of the consequence, but the lack of the ability of prosecutors and judges to control the whole range of restrictions and punishment imposed on an offender that is the problem. As a prosecutor, you must comprehend this full range of consequences that flow from a crucial conviction. If not, we will suffer the disrespect and lose the confidence of the very society we seek to protect.
