Bar News - January 18, 2017
Criminal Law: Collateral Consequences of Criminal Convictions
By: Henry Klementowicz
The collateral consequences of a criminal conviction can be devastating and far-reaching. Everything from immigration to professional licenses to eligibility for federal housing subsidies to the right to serve on a jury can be affected by convictions.
In addition to the regulatory and statutory disabilities imposed, a person convicted of a crime can experience discrimination in housing and employment – potentially leading to a cycle of poverty and homelessness long after a sentence has been served. One survey, by the Institute for Research on Poverty, found that more than 60 percent of employers responded that they would “probably not” or “definitely not” hire applicants with criminal records.
On May 24, 2016, Judge Frederic Block of the Eastern District of New York issued a lengthy opinion in United States v. Chevelle Nesbeth detailing the devastating consequences facing a young woman convicted of importing cocaine and possession with intent to distribute. The judge reported that the defendant could be barred from working in the child care, pharmaceutical, transportation, hospice, and financial industries. She could be barred from joining the armed forces or a labor union. She could be barred for life from disaster assistance, couldn’t adopt a child, couldn’t serve on a jury, and couldn’t receive her teacher’s certificate. After reviewing these collateral consequences, the judge departed downward from the sentencing guidelines range of 33 to 41 months in prison to one year of probation with six months’ home confinement and 100 hours of community service.
As Judge Block noted, there are nearly 50,000 federal and state statutes and regulations that impose disabilities or disadvantages on convicted felons. Many of the statutes are automatic and take effect by operation of law; a sentencing judge could not vacate these disabilities even in the interest of justice.
Helpfully, the American Bar Association’s Criminal Justice Section undertook the task of compiling many of these statutes in one place: www.abacollateralconsequences.org. From the website, one can search by state, type of disability, and type of offense. The entry for New Hampshire reveals 1,119 such disabilities, ranging from the esoteric (a person convicted of a felony who is not an attorney cannot represent a person before the board of dental examiners, NH Admin. Rules Den. 204.01) to the economic (a person convicted of a disqualifying felony is ineligible for a master electrician license, NH Admin. Rules Elec. 302.02) to those having constitutional import (a person incarcerated of a felony conviction cannot vote, RSA 607-A:2, and a person convicted of an un-annulled felony cannot sit on a jury for life, RSA 500-A:7-a).
The vast majority of attorneys cannot commit 50,000 statutes to memory, but there are some key collateral consequences of which practitioners should be aware. Many clients are interested in enlisting in the armed forces. Those clients should know that they will have to disclose their criminal histories. They will likely need waivers if they have misdemeanor convictions, while those with felony convictions may not enlist, except for “meritorious cases,” according to federal law. Anecdotal evidence suggests that waivers can be hard or impossible to come by at present.
Clients who frequently travel to Canada should know that they may be barred from Canada if they are convicted of offenses that would be considered indictable or hybrid offenses under Canadian law, such as driving while intoxicated.
Of course, if a lawyer has a client who holds a professional license, she should inform the client of the possible licensure ramifications of a criminal conviction.
A client who has been convicted of certain drug offenses while receiving federal financial aid can have his eligibility for future financial aid negatively affected.
And clients with opioid dependencies should know that under the recently passed SB 515, a custodial parent’s opioid abuse or dependence shall constitute prima facie evidence of child neglect.
The landmark Supreme Court case Padilla v. Kentucky held that defense counsel provides constitutionally deficient performance by failing to advise a client of the risk of deportation inherent in a plea deal. And while defense counsel may not be ineffective by failing to inform clients of other, non-immigration consequences, counsel always has an ethical obligation to give her clients the best advice she can. Moreover, attorneys should be aware that “grossly misinform[ing]” a client about a collateral consequence is ineffective. In State v. Sharkey, the NH Supreme Court found an attorney’s inaccurate advice regarding the effect a DUI would have on the client’s Massachusetts driver’s license would be ineffective.
Prosecutors, too, will benefit from careful consideration of collateral consequences a defendant may face. As a comment to Rule 3.8 makes clear, a prosecutor is a minister of justice, and not just an advocate. She may be well served by considering the following, when making a charging decision or plea offer: does it serve the interests of justice that this defendant does not represent someone before the Dental Board? That this defendant become ineligible to be a master electrician? That he be ineligible to join the military? That he not vote?
The broad restrictions and disabilities that follow a criminal conviction form what Judge Block in Nesbeth calls modern “civil death.” While those charged with class B misdemeanors may face these penalties uncounseled, defendants facing more serious charges rely on lawyers to guide them through the criminal process and to provide the best advice they can on the collateral consequences of a criminal conviction or plea.
Henry Klementowicz is a lawyer in the Litigation Department of McLane Middleton and can be reached at (603) 628-1377 or by email.