The Restoration of Rights: A New End Game in Criminal Defense Representation (Inside NACDL)

NACDL has launched the Restoration of Rights Project, an online resource to help lawyers and clients combat the consequences that flow from a criminal conviction.

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

NACDL has launched a new online resource designed to help lawyers and clients combat the multitude of enmeshed consequences that flow from a criminal conviction. This column describes the Restoration of Rights Project, and why it can be an invaluable tool in providing first-rate assistance to clients. But first, it should be viewed in the context of the criminal justice system as it has evolved.

When a client facing investigation or prosecution turns to a criminal defense lawyer, the ultimate objective will never change. The lawyer’s duty is to seek to avoid the criminal charges in the first instance, or if charges are inevitable, to defeat them if it is possible. Zealous advocacy to secure a client’s complete exoneration and challenge governmental excess is deeply engrained in the defense function. The fact is, however, that complete exoneration is often not a likely outcome. Practitioners, commentators and even, most recently, the U.S. Supreme Court have come to recognize that the American criminal justice system has become largely a vast plea-bargaining mill.1 It “is for the most part a system of pleas, not a system of trials.”2 This is a lamentable development. There must be a concerted public policy reform effort to restore balance, and to limit the untrammeled prosecutorial power that drives the system to plea bargains through the manipulation of harsh mandatory minimum sentences. But until then, the plea bargaining system is a reality that cannot be ignored.

As has been widely noted, the focus on plea bargaining imposes significant obligations on lawyers to understand, analyze, and provide counsel to the client on the myriad consequences that will flow from the particular convictions that will result from the guilty plea.3 Careful planning, coupled with skillful and passionate advocacy, may lead to plea terms that can minimize the lasting consequences for the client. This presents an enormous challenge in what should be recognized as the “Age of Collateral Consequences.” The American Bar Association is studying the collateral consequences in all U.S. jurisdictions. The ABA National Inventory of the Collateral Consequences of Conviction has identified more than 10,000 consequences in the first dozen jurisdictions catalogued, and projects that when the work is complete the inventory will contain more than 40,000 consequences.4 With more than 2.3 million people in the nation’s jails and an estimated 65 million with criminal records, the panoply of enmeshed consequences from criminal convictions threatens to create a vast permanent underclass.

While the need to recognize and explain the vast array of consequences presents a daunting challenge for defense attorneys, it also suggests a companion responsibility — a new dimension to criminal defense representation that in the final analysis may prove to be the most critical and invaluable role a lawyer can play for the client. It is no longer enough to simply tell the client what consequences the client will face as a result of the conviction; it is equally important to provide guidance on the avenues available to eliminate those consequences on the back end of the process. The availability of relief mechanisms and the complex procedures to invoke them are dense areas of the law. Lawyers are seldom trained in this field, and criminal defense practitioners, whose relationship with the client typically ends after the imposition of sentence following a plea bargain, have little occasion to delve into these issues. But they should. Lawyers can provide a tremendous service to their clients both before and after the entry of pleas by understanding and explaining how clients may achieve the restoration of their rights.

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But it is simply not enough for a bar association to urge lawyers to take on new responsibilities. The profession has an obligation to provide lawyers with the resources necessary to fulfill these responsibilities. And that is where the Restoration of Rights Project comes into play. Last month, NACDL launched a 54-jurisdiction database that catalogues the various relief mechanisms in each of the 50 states, the federal system, the District of Columbia, Puerto Rico, and the Virgin Islands. It is available at www.nacdl.org/rightsrestoration.

This resource provides a compilation of the various methods by which a client may seek the restoration of various rights. It identifies the available mechanisms in each state, and provides both a handy summary of those options and a comprehensive analysis. In addition, there are comparative charts that will facilitate the work of public policy advocates and reformers. This resource, which will soon be supplemented by a comprehensive treatise on collateral consequences,5 reflects NACDL’s continuing commitment to the nation’s criminal defense bar to meet the changing demands of criminal defense practice. In the coming weeks, NACDL will launch yet another resource — one that can directly assist lawyers in the struggle against unreasonably harsh sentences. Stay tuned.

Notes

  1. The Supreme Court called it a “simple reality” that “97 percent of federal convictions and 94 percent of state convictions are the result of guilty pleas.” Missouri v. Frye, 132 S. Ct. 1399, 1402 (2012).
  2. Lafler v. Cooper, 132 S. Ct. 1376, 1381 (2012).
  3. Norman L. Reimer, The Padilla Decision, The Champion, December 2010 at 7; Norman L. Reimer, Frye and Lafler: Much Ado About What We Do, The Champion, April 2012 at 7.
  4. Go to http://www.abacollateralconsequences.org.
  5. The content in the Restoration of Rights Project was prepared by Margaret Colgate Love. The profile and charts will be included in a treatise that Margaret is writing, along with Cecelia M. Klingele and Jenny Roberts. The treatise, Collateral Consequences of a Criminal Conviction: Law, Policy and Practice, will be published next year by NACDL Press, a co-publishing arrangement with Thomson Reuters West. Margaret Love was assisted in the process of compiling the restoration of rights provision by a magnificent team of pro bono lawyers from the firm of Crowell & Moring LLP.

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