Collateral Consequences of Criminal Conviction

Collateral consequences, which may arise from a single offense, can end up affecting a defendant in many disparate areas. Often, collateral consequences limit the ability of people who have convictions to work in certain occupations, obtain licenses for certain activities, receive government benefits, and participate in the civic life of their communities. The penalties may impede the defendant's ability to return to professional, as well as unskilled and semi-skilled, occupations, or limit an individual's role within certain businesses. These penalties often create unforeseen burdens in an individual's personal life.

The proliferation of licensing regimes further confounds the ability of a defendant and attorney to understand the full extent of the penalties the defendant will face.

The restrictions issued by the numerous licensing agencies can be automatic or discretionary and may remain hidden in the verbosity of agency regulations, legislative record, or license applications. Most states have yet to codify or organize the unsystematic proliferation of penalties into one single collection. Because of this, fully understanding collateral consequences is a challenging task.

Padilla v. Kentucky

Despite these difficulties of understanding, the Supreme Court has, in at least one context, ruled that a defense attorney must advise a client about the collateral consequences associated with a plea. In Padilla v. Kentucky (www.supremecourt.gov/opinions/09pdf/08-651.pdf, March 31, 2010), the Court ruled that criminal defense attorneys have an affirmative obligation to advise clients of the impact a guilty plea or conviction will have on an immigration status. The 7-2 decision held that a lawyer's failure to give accurate advice on a collateral consequence of conviction violated his client's Sixth Amendment rights. While the Court limited its holding to cases involving non-citizens facing criminal charges, the Court's decision will impact the law related to all collateral consequences.

Defendant Jos' Padilla, a legal permanent resident who had been living in the United States for over 40 years and had even served in the U.S. military, faced deportation after pleading guilty to transporting a large amount of marijuana. Drug trafficking is a deportable offense under federal law, and Padilla claimed that his lawyer failed to advise him of the consequence his plea would have on his immigration status. He further claimed that his plea was in part guided by his lawyer's statement that the length of his residence in the United States as a legal permanent resident would insulate him from any change to his immigration status.

The Court, in an opinion by Justice Stevens, stated that the defendant's counsel “could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute” which “specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses.” The opinion noted an almost indivisible relationship between immigration status and criminal convictions. This special relationship “underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation.” The Court's decision makes clear that counsel must inform their client in all criminal cases whether a plea carries a risk of deportation. A dissent by Justice Scalia, joined by Justice Thomas, while strongly disputing the majority's Sixth Amendment holding, did not discount the importance of notifying defendants about the severity of collateral consequences. “In the best of all possible worlds, criminal defendants contemplating a guilty plea ought to be advised of all serious collateral consequences of conviction, and surely ought not to be misadvised,” Justice Scalia wrote.

Without a doubt, the Padilla decision will change the relationship between notice of collateral consequences and effective assistance of counsel. Future cases will likely lead the Court to refine its holding or expand it to cover collateral consequences beyond those associated with immigration. However, the challenges raised by the existence of collateral consequences are larger than just notice. Mitigating the consequences in many states is as difficult as knowing of them. Improvement of the law related to collateral consequences calls for a legislative solution that both mandates notice and provides opportunity of relief.

The Uniform Collateral Consequences of Conviction Act

Over the past four years, the Uniform Law Commission (ULC) worked to organize the national patchwork of collateral consequences. The ULC, best known for the Uniform Commercial Code, provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law. The Uniform Collateral Consequences of Conviction Act (UCCCA), finalized in July 2009, implements provisions related to the collection, notification, and authorization of collateral consequences. The second component provides relief from collateral consequences.

States enacting the UCCCA would direct a state agency to collect all collateral consequences contained in state law and regulations and make the information available to the public in one document. Each consequence would have to be summarized by a short description that explains the nature and extent of the penalty. Further, the document would include all provisions for avoiding or mitigating the penalty. Under the UCCCA, an individual charged with a criminal offense would have to be provided with notice of the existence of collateral consequences. Notification would be mandatory at the time of sentencing, and if the individual is sentenced to prison, again at the time of release. Offenders would also be notified of the opportunity to obtain relief from the collateral consequences.

The aggregation of all state law collateral consequences would, for the first time, facilitate effective lawyer-client counseling and improve the fairness of the criminal justice system. It would also help lawyers comply with the Supreme Court's holding in Padilla. With the collection of collateral consequences in hand, including but not limited to immigration, defense lawyers would be able to inform the accused fully of the consequences of a guilty plea before it is made. Similarly, once the information is routinely provided during criminal proceedings, prosecutors and judges will have in mind the impact of collateral consequences when considering pleas and sentences.

Additionally, the UCCCA includes an Order of Limited Relief and a Certificate of Restoration of Rights. An Order of Limited Relief permits a court or agency to lift the automatic effect of a collateral sanction. The Certificate of Restoration of Rights informs potential employers, landlords, or licensing agencies that the offender has made substantial progress towards rehabilitation, thereby reducing the stigma of a criminal past and promoting the individual's fitness for reintegration into society. Three types of collateral sanctions, however, are excluded from relief: sex offender registration, motor vehicle licensing sanctions, and prohibitions against employment by law enforcement agencies.

Going Forward

The Padilla decision will likely increase the scrutiny lawyers will face when advising clients about guilty pleas, and draw attention to the current state of disarray that leaves lawyers and clients unaware of the severity of the penalties facing the clients. It will also expose the difficulty faced by a rehabilitated individual in trying to overcome collateral consequences. Studies addressing systematic reform to collateral consequences have commenced in several states including Ohio, Washington, Vermont, Connecticut, New York and Wisconsin. As these states and others look towards a legislative solution to the problems collateral consequences pose throughout the criminal justice system, statutory solutions such as the UCCCA will hopefully become prevalent across the country.

Eric M. Fish ([email protected]) is Legislative Counsel for the Uniform Law Commission in Chicago.

Criminal convictions may result in numerous penalties beyond the imprisonment or fine imposed after trial. Commonly referred to as the “collateral consequences” of a conviction, these often hidden and misunderstood penalties exist in two forms: collateral sanctions and collateral disqualifications. Collateral sanctions are automatic changes in one's rights in connection with a conviction. Collateral disqualifications are penalties and disabilities that are imposed through the exercise of discretion by some governmental authority. The discretionary nature of some of the consequences and the variety of entities that may impose them create difficulties for lawyers attempting to inform their clients and often leave defendants either uninformed or ill-advised about all possible penalties as they enter into plea negotiations or sentencing.

A 2010 Supreme Court decision, Padilla v. Kentucky, expands a lawyer's duty to counsel a client about certain collateral consequences at the time of a plea. The case highlights the pervasiveness of collateral consequences and the importance of advising a client of all penalties that may result from a guilty verdict or plea. Meanwhile, a newly proposed Uniform State Law offers a potential solution to the bewildering problem of collateral consequences faced by criminal defendants and their lawyers.

Understanding Collateral Consequences

Collateral consequences, which may arise from a single offense, can end up affecting a defendant in many disparate areas. Often, collateral consequences limit the ability of people who have convictions to work in certain occupations, obtain licenses for certain activities, receive government benefits, and participate in the civic life of their communities. The penalties may impede the defendant's ability to return to professional, as well as unskilled and semi-skilled, occupations, or limit an individual's role within certain businesses. These penalties often create unforeseen burdens in an individual's personal life.

The proliferation of licensing regimes further confounds the ability of a defendant and attorney to understand the full extent of the penalties the defendant will face.

The restrictions issued by the numerous licensing agencies can be automatic or discretionary and may remain hidden in the verbosity of agency regulations, legislative record, or license applications. Most states have yet to codify or organize the unsystematic proliferation of penalties into one single collection. Because of this, fully understanding collateral consequences is a challenging task.

Padilla v. Kentucky

Despite these difficulties of understanding, the Supreme Court has, in at least one context, ruled that a defense attorney must advise a client about the collateral consequences associated with a plea. In Padilla v. Kentucky (www.supremecourt.gov/opinions/09pdf/08-651.pdf, March 31, 2010), the Court ruled that criminal defense attorneys have an affirmative obligation to advise clients of the impact a guilty plea or conviction will have on an immigration status. The 7-2 decision held that a lawyer's failure to give accurate advice on a collateral consequence of conviction violated his client's Sixth Amendment rights. While the Court limited its holding to cases involving non-citizens facing criminal charges, the Court's decision will impact the law related to all collateral consequences.

Defendant Jos' Padilla, a legal permanent resident who had been living in the United States for over 40 years and had even served in the U.S. military, faced deportation after pleading guilty to transporting a large amount of marijuana. Drug trafficking is a deportable offense under federal law, and Padilla claimed that his lawyer failed to advise him of the consequence his plea would have on his immigration status. He further claimed that his plea was in part guided by his lawyer's statement that the length of his residence in the United States as a legal permanent resident would insulate him from any change to his immigration status.

The Court, in an opinion by Justice Stevens, stated that the defendant's counsel “could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute” which “specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses.” The opinion noted an almost indivisible relationship between immigration status and criminal convictions. This special relationship “underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation.” The Court's decision makes clear that counsel must inform their client in all criminal cases whether a plea carries a risk of deportation. A dissent by Justice Scalia, joined by Justice Thomas, while strongly disputing the majority's Sixth Amendment holding, did not discount the importance of notifying defendants about the severity of collateral consequences. “In the best of all possible worlds, criminal defendants contemplating a guilty plea ought to be advised of all serious collateral consequences of conviction, and surely ought not to be misadvised,” Justice Scalia wrote.

Without a doubt, the Padilla decision will change the relationship between notice of collateral consequences and effective assistance of counsel. Future cases will likely lead the Court to refine its holding or expand it to cover collateral consequences beyond those associated with immigration. However, the challenges raised by the existence of collateral consequences are larger than just notice. Mitigating the consequences in many states is as difficult as knowing of them. Improvement of the law related to collateral consequences calls for a legislative solution that both mandates notice and provides opportunity of relief.

The Uniform Collateral Consequences of Conviction Act

Over the past four years, the Uniform Law Commission (ULC) worked to organize the national patchwork of collateral consequences. The ULC, best known for the Uniform Commercial Code, provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law. The Uniform Collateral Consequences of Conviction Act (UCCCA), finalized in July 2009, implements provisions related to the collection, notification, and authorization of collateral consequences. The second component provides relief from collateral consequences.

States enacting the UCCCA would direct a state agency to collect all collateral consequences contained in state law and regulations and make the information available to the public in one document. Each consequence would have to be summarized by a short description that explains the nature and extent of the penalty. Further, the document would include all provisions for avoiding or mitigating the penalty. Under the UCCCA, an individual charged with a criminal offense would have to be provided with notice of the existence of collateral consequences. Notification would be mandatory at the time of sentencing, and if the individual is sentenced to prison, again at the time of release. Offenders would also be notified of the opportunity to obtain relief from the collateral consequences.

The aggregation of all state law collateral consequences would, for the first time, facilitate effective lawyer-client counseling and improve the fairness of the criminal justice system. It would also help lawyers comply with the Supreme Court's holding in Padilla. With the collection of collateral consequences in hand, including but not limited to immigration, defense lawyers would be able to inform the accused fully of the consequences of a guilty plea before it is made. Similarly, once the information is routinely provided during criminal proceedings, prosecutors and judges will have in mind the impact of collateral consequences when considering pleas and sentences.

Additionally, the UCCCA includes an Order of Limited Relief and a Certificate of Restoration of Rights. An Order of Limited Relief permits a court or agency to lift the automatic effect of a collateral sanction. The Certificate of Restoration of Rights informs potential employers, landlords, or licensing agencies that the offender has made substantial progress towards rehabilitation, thereby reducing the stigma of a criminal past and promoting the individual's fitness for reintegration into society. Three types of collateral sanctions, however, are excluded from relief: sex offender registration, motor vehicle licensing sanctions, and prohibitions against employment by law enforcement agencies.

Going Forward

The Padilla decision will likely increase the scrutiny lawyers will face when advising clients about guilty pleas, and draw attention to the current state of disarray that leaves lawyers and clients unaware of the severity of the penalties facing the clients. It will also expose the difficulty faced by a rehabilitated individual in trying to overcome collateral consequences. Studies addressing systematic reform to collateral consequences have commenced in several states including Ohio, Washington, Vermont, Connecticut, New York and Wisconsin. As these states and others look towards a legislative solution to the problems collateral consequences pose throughout the criminal justice system, statutory solutions such as the UCCCA will hopefully become prevalent across the country.

Eric M. Fish ([email protected]) is Legislative Counsel for the Uniform Law Commission in Chicago.