Tuesday, October 7, 2014

PLW: Advising Clients of the Collateral Consequences of Conviction

Matthew T. Mangino
The Pennsylvania Law Weekly
October 7, 2014
Several years ago, the American Bar Association identified more than 38,000 penalties, called collateral consequences, that can impact an offender convicted of a crime long after that offender has completed his or her sentence.
Collateral consequences are the additional civil penalties tied to a criminal conviction that can have a lifetime impact on an offender. These consequences include barriers to housing, education, employment, disenfranchisement and ineligibility for public benefits.
Collateral consequences are distinct from direct consequences of convictions in that they are not formally part of punishment or sentencing, and are triggered outside the jurisdiction of the criminal courts, according to the National Employment Law Project.
The collateral consequences of crime are add-ons to punishment meted out by legislative action following a criminal conviction.
It is not as though direct punishment imposed on convicted criminals is inadequate. At the end of 2013, the United States held an estimated 1.57 million people in state and federal prisons, according to the U.S. Department of Justice, Bureau of Justice Statistics.
Incarceration is not the only place in which supervision of offenders has increased. According to professor Tracy Sohoni in "The Effect of Collateral Consequence Laws on State Rates of Returns to Prison," "probation and parole have also seen large increases in numbers, with 800,000 people currently on parole and an additional 4 million individuals on probation. This has culminated in a situation in which 1 in 33 Americans is currently under some form of correctional supervision."
According to the NELP, an estimated 65 million Americans have a criminal record. Every sentence, unless it is death or life without parole, will have a beginning and an end. Collateral penalties have the capacity to go on forever.
Traditionally, counsel in a criminal case cannot be deemed ineffective for failing to advise a defendant regarding the collateral consequences of a plea or conviction, although some would argue that justice dictates that a defendant be fully advised of the ramifications of a conviction.
According to attorney Margaret Colgate Love in "Collateral Consequences after Padilla v. Kentucky: From Punishment to Regulation," for many years, courts drew a bright line between "the 'direct' consequences of conviction, which a criminal defendant had a right to know about before entering a guilty plea, and 'collateral' consequences that were considered constitutionally irrelevant to that decision, no matter how important they might be to the defendant."
Then the U.S. Supreme Court decided Padilla v. Kentucky, 559 U.S. 356 (2010). The high court ruled that a criminal defense attorney must advise a noncitizen client about the deportation risks of a guilty plea. The case extended the Supreme Court's prior decisions on criminal defendants' Sixth Amendment right to counsel to immigration matters.
Then in the summer of 2012 the court decided Missouri v. Frye, 132 S.Ct. 1399 (2012), and Lafler v. Cooper, 132 S.Ct. 1376 (2012). These decisions provided that criminal defendants are entitled to effective and competent representation during plea negotiations. Would that extend to advising clients of the collateral consequences of a conviction?
In Pennsylvania, the answer appears to be no. In December 2012, the Pennsylvania Supreme Court decided Commonwealth v. Abraham, 58 A.3d 42 (2012). Joseph Abraham, a retired teacher, unknowingly forfeited his pension as a collateral consequence of pleading guilty to a misdemeanor. He was not advised by his counsel of the consequences and apparently the prosecutor and judge were not aware of the plea's impact. The Pennsylvania Supreme Court ruled, "Not getting money as a consequence of breaching an employment contract cannot be equated with being forced to leave the country [a reference to Padilla]. ... We cannot conclude forfeiture of an employment benefit is so enmeshed in the criminal process that it cannot be subjected to a direct versus collateral consequences analysis."
Pennsylvania law is replete with high-impact collateral consequences for criminal convictions. For example, 4 Pa. Code 7.173 provides, "As soon as practicable after an employee has been formally charged with criminal conduct related to his employment with the commonwealth or which constitutes a felony, the employee shall be suspended without pay. If the charge results in conviction in a court of law, the employee shall be terminated."
Society indirectly suffers the unintended consequences of collateral sanctions. The unemployment rate of formerly incarcerated offenders one year after release is estimated to be near 60 percent, and there is an increasing reluctance among employers to hire people with criminal histories. Offenders successfully returning home from prison often identify employment as the most important factor that helped them stay crime-free.
A former offender "may be ineligible for many federally funded health and welfare benefits, food stamps, public housing and federal educational assistance," according to the ABA. Collateral consequences may prohibit military service, possession of a firearm or a federal security clearance.
A little more than a decade ago, access to information about collateral consequences across states was very limited. In 2003, the ABA urged jurisdictions to identify and codify collateral sanctions. A few years later the Uniform Law Commission made similar recommendations.
The Court Security Improvement Act of 2007, Section 510, directed the National Institute of Justice to collect and analyze the collateral consequences for each U.S. jurisdiction, resulting in the National Inventory of the Collateral Consequences of Conviction, which has a website at www.abacollateralconsequences.org. The website makes it possible for criminal and civil lawyers to determine which collateral consequences are triggered by particular categories of offense and to help offenders facing sentencing understand the potential impact of collateral civil penalties imposed by law.
Daryl Atkinson, a staff attorney with the Southern Coalition for Social Justice, spent 40 months in prison in the late 1990s.
Atkinson told Legal affiliate the National Law Journal that the website "is literally lifting the veil on these invisible punishments. When I think about my personal experiences ... 40 months of incarceration was a blip on the radar screen of life. When I'm released, I face this web of invisible punishments that I knew nothing about."
Pennsylvania practitioners can use the website as a first step in advising clients facing criminal prosecution about the potential impact of collateral civil penalties that could affect various aspects of an offender's life, not least of which include licensure, employment, entitlements and residency. 
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, "The Executioner's Toll, 2010," was recently released by McFarland & Co. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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