The Champion

May 2013 , Page 82 

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Collateral Consequences Roundtable

By Collateral Consequences Roundtable

One in four Americans has a criminal record. The consequences of a criminal conviction — specific legal barriers, generalized discrimination, and social stigma — have become more numerous and severe, more public, and more permanent. 

Margaret Colgate Love, Jenny Roberts, and Cecelia Klingele have written the definitive treatise on collateral consequences. Their work, Collateral Consequences of Criminal Convictions: Law, Policy & Practice, is a thorough, user-friendly volume that should be within arm’s reach of every criminal defense attorney, civil practitioner, policy advocate, and public official. 

The authors sat down with Rick Jones, co-chair of NACDL’s Task Force on the Restoration of Rights and Status After Conviction, to give unique insight into their work and perspectives. 

Rick Jones (RJ): How did you come to write this book? How did you get involved in this area of the law? 

Margaret Love (ML): I became aware of the enduring legal restrictions and social stigma faced by people with a criminal record more than 20 years ago when I served as Pardon Attorney in the U.S. Justice Department. Many people with federal convictions sought a presidential pardon because it was the only way for them to overcome what were then called “civil disabilities.” After leaving the Justice Department I represented people seeking relief from collateral consequences. When the U.S. Supreme Court decided the Padilla case in 2010, it seemed like the right time to provide the defense bar with a comprehensive treatment of a subject of such vital importance to their clients.

Jenny Roberts (JR): I have spent my entire legal career, first as a public defender and now as a professor in a criminal defense clinic, dealing with and thinking about how the criminal justice system affects clients’ whole lives. This includes and reaches far beyond the criminal case because a criminal conviction follows an individual out of the courthouse doors and endures. My students in the Criminal Justice Clinic at American University, Washington College of Law, are very familiar with collateral consequences of a client’s potential criminal conviction. Just this semester, students engaged in intensive investigation and creative negotiation to help two clients avoid deportation: a 65-year-old woman with no criminal history charged in a minor criminal case, and a young man who faced mandatory deportation to a country where his father had been a political prisoner. Other students helped another client, through resentencing proceedings, fight public housing eviction and the inability to work in her former job due to a disorderly conduct conviction. For me, this book describes the law, policy, and practice that my students and I are involved in on a daily basis.

Cecelia Klingele (CK): I have a long-standing interest in what happens to people after they are convicted, from sentencing to the way sentences are executed to the lifelong ramifications of criminal conviction. Margy Love and I had worked together on several projects and papers, and when she approached me about co-authoring this treatise, it struck me as a chance to provide a much-needed resource to the legal community and to people affected by criminal conviction.

RJ: Why should a criminal defense attorney care about the collateral consequences of a criminal conviction? 

ML: For one thing, collateral consequences are tremendously important to clients and can affect their life choices long after the criminal case is over. Since plea bargaining has increasingly become the norm in criminal cases, defendants have a right to know the full range of consequences that will flow from a decision to give up the right to contest the charges against them. For another thing, collateral consequences can be an important negotiating tool with prosecutors, and influence the judge’s choice of a sentence. There is a whole chapter in the book dealing with how collateral consequences come into play at every stage of a criminal case, from the charging decision to post-conviction relief.

JR: Saddling a person with unnecessary consequences based on a criminal conviction can take that person out of the workforce, the education system, civic participation, and decent housing. This not only negatively affects this individual’s life, but also undermines public safety. I hope the book will help defenders, prosecutors, judges, legislators, and individuals with or facing criminal records understand the intense and often irrational web of collateral consequences that can entangle a person with even the most minor criminal conviction.

The criminal defense attorney has a critical role informing clients about collateral consequences because clients make decisions based on the consequences that matter to them, and those will almost always include serious collateral consequences. Beyond this professional duty, defense counsel has an established constitutional duty to inform clients about deportation, and in some jurisdictions about sex offender registration and other consequences. Although the Supreme Court has not yet examined a case involving defense counsel’s duty to negotiate to avoid severe collateral consequences, the Court’s recent plea bargaining jurisprudence strongly supports such a duty.

CK: If the purpose of representation is to help an individual navigate the legal consequences of crime and obtain an outcome that is substantively and procedurally fair — and I think it is — then understanding the legal consequences of conviction is critical to representing your client well. Many collateral consequences endure years after a person’s formal sentence has ended, and often affect people in ways they would not anticipate at the time of conviction. A good lawyer will help the client understand the ways in which a conviction is likely to affect him, and to make strategic decisions that are intended to produce an outcome that seems fair not only at the time of conviction, but from a long-term perspective as well.

RJ: Have we always had collateral consequences of convictions, or has there been a recent rise in the type and scope of them? 

ML: Collateral consequences have been a familiar feature of the American legal system since colonial times. In the past 25 years, collateral consequences have increased in number and severity. In most states there are more than a thousand collateral consequences on the books, many of which are mandatory and permanent. It is fair to say that there are very few regulated activities where conviction is not taken into account, and background checking has become ubiquitous in the private sector as well. Landlords won’t rent to people with a criminal record, banks and insurance companies won’t do business with them, and even volunteer organizations refuse their services. Clients of mine have been refused permission to coach their children’s sports teams or accompany them on school field trips.

JR: In the past, someone who wanted to learn about another person’s criminal history had to make the effort to travel to the local courthouse and could view only the public record. Today, anyone with an Internet connection can access a person’s criminal record in many jurisdictions; employers, landlords, and others use background checks, and these can include arrests or even expunged records. The exponential growth in the type and number of collateral consequences, combined with technology allowing easy access to an individual’s encounters with the criminal justice system, means that these individuals experience the myriad collateral consequences of a criminal conviction in a more immediate, pervasive manner than ever before.

CK: Some kinds of collateral consequences, like restrictions on voting or holding public office, date back to the ancient world. Most modern consequences, however, are very recent in origin. Remember that before the modern era, most felonies were capital offenses! The number and variety of crimes has increased astronomically over the past century, and civil consequences of conviction have exploded along with them.

RJ: People with prior convictions are often referred to as “ex-cons,” “felons,” or “offenders.” Is there more appropriate, less stigmatizing terminology that we should use? 

ML: Language is central to the way we frame public policy issues. Disparaging labels like “felon” and “criminal” and “ex-con” perpetuate negative stereotypes, and imply that all people who have ever been convicted of a crime are dangerous or at least undesirable as neighbors and colleagues. They identify a person as belonging to a class outside the protection of the law, someone who can be freely discriminated against, someone who exists at the margins of society. Even a relatively innocuous word like “offender” tends to reinforce stereotypes based on behavior that might have taken place many years before. In emphasizing the permanent stigma of conviction, these labels are inconsistent with the American ideal of second chances, as well as with policies aimed at reducing recidivism and encouraging rehabilitation.

But words like “felon” and “criminal” do more work than that: they arouse fear and loathing in most of us. Because such a high percentage of people with a criminal record are racial or ethnic minorities, these labels serve as a proxy for other stigmatizing labels that are no longer socially acceptable.

It is not difficult to substitute language that describes behavior for language that labels a person. For example, we can talk about people who have been convicted of a crime, or a person with a criminal record. Journalists play a key role in advancing the cause of social justice, and they do it through the language they use. We should insist that even headline writers find ways to avoid using words that are so toxic. I was encouraged to see that the AP has recently removed from its style book the label “illegal” to describe a person who entered this country without proper documentation. We should try to persuade journalists to take the same high road where people with a criminal record are concerned.

RJ: The road to restoration of status after conviction for many is often elusive, and the legal mechanisms available seem to vacillate confusingly between the idea of “forgetting” one’s offense and “forgiving” it. What is the difference between forgetting and forgiving? As a society, which way should we be headed? 

ML: Since the 1960s there has been a debate over how people convicted of crimes can pay their debt to society and put their past behind them. Some argue that judicial expungement or sealing should be used to restrict access to conviction records, while others argue in favor of some more public way for government to recognize and reward rehabilitation. In recent years technology has made it harder for people to hide from their past, so that relief predicated on forgiveness has become more popular. Some jurisdictions have adopted a sort of compromise between these approaches, allowing decision makers to consider criminal records for a limited period of time, or giving job applicants a chance to be interviewed before their record is revealed. The Uniform Collateral Consequences of Conviction Act proposes that courts should be able to dispense with particular legal restrictions that frustrate the prospects of successful re-entry and award certificates of good conduct to recognize rehabilitation. The Model Penal Code is taking a similar “forgiveness” approach. Relief mechanisms vary widely in their availability and effectiveness from state to state, but it is fair to say that this is becoming an increasingly popular subject for legislation.

My own preference, quite apart from the practical difficulty of hiding a criminal record in the Internet age, is for forgiveness. I like a more public way of closing the books on a criminal case because of the opportunities it provides for reconciliation and making amends. It is always encouraging to see that the criminal justice system works by telling its success stories.

JR: Forgiving and forgetting are both important ways to allow an individual with a conviction to move forward in life. For example, if a person has a minor conviction, or a conviction that is unrelated to that person’s job, I would hope that expungement or other “forgetting” mechanisms can work to keep irrelevant information from consideration by an employer. With other, related or more serious offenses, the person may have to earn forgiveness.

CK: There are a variety of ways to ameliorate the collateral consequences of conviction. The most direct is to repeal those consequences that are excessive, unnecessary, or counterproductive. There is much to be said for cleaning up statutory codes and making them fairer and more coherent.

There is also, however, a need to provide individuals who are subject to collateral consequences with an opportunity to make a fresh start after a certain period of time has passed. This can be done in many ways. Often, states allow some individuals to expunge their records. In many instances expunged records are also sealed, meaning they cannot be accessed, except by authorized officials. While expungement works well in some jurisdictions, the use of data mining on the Internet makes it increasingly difficult to “hide” past convictions even when a court later orders the conviction “undone.”

An alternate approach is to provide official forms of forgiveness for individuals who have served their sentences and who have successfully reintegrated into the law-abiding community. Pardons, certificates of rehabilitation or restoration of rights, and employment certificates are all forms of official “forgiveness” that certify to the community that an individual who has committed a crime in the past no longer requires the extra regulation that collateral consequences impose. Without hiding a person’s past, they serve as an official recognition that the individual no longer needs to be defined by his criminal record.

Go to http://legalsolutions.thomsonreuters.com/law-products for additional information about Collateral Consequences of Criminal Convictions: Law, Policy & Practice.

Join NACDL in New Orleans March 5-8, 2014, for its Midwinter Meeting & Seminar — Preventing & Mitigating the Consequential Domino Effect of Criminal Convictions.

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