Collateral consequences of criminal charges

Collateral consequences of criminal charges, known as the "Four C's" in legal parlance [http://www2.law.columbia.edu/fourcs] , are the results of arrest, prosecution or conviction that are not part of the sentence imposed.

This includes any unintended or unforeseen impact of the charge, even in the absence of a conviction or a trial. Generally, this is related to the distinction between direct and collateral consequences of action or inaction.

Introduction

The criminal justice system applies criminal law to defendants accused of committing a crime. If found guilty, or if the defendant pleads guilty, the sentencing authority (usually a judge) imposes a sentence.

This sentence can take many forms, including (but not limited to) revocation of privileges, such as driving, house arrest, community service, probation, fines and imprisonment. Collectively, these consequences of the crime are referred to as direct consequences - those intended by the judge, and frequently mandated at least in part by an applicable law or statute.

However, beyond the terms of the sentence, a defendant can experience far-reaching and unexpected effects. For example, a person convicted of a felony may experience (in addition to social stigma) disenfranchisement, loss of federal loans for education (for drug charges), loss of professional licenses, or eviction from public housing. While merely a sampling of the potential effects, consequences of a criminal conviction that are not intended by the judge, or that are beyond the terms of a sentence itself, are referred to as collateral consequences. Because such ramifications may stem from merely being charged with a crime, rather than necessarily being convicted, "collateral consequences of criminal charges" is preferred by some over shorter but more ambiguous names.

To illustrate, while an arrest will not necessarily lead to a state sanction such as imprisonment, the arrest itself may have serious ramifications, such as a loss of a job due to inability to pay bail, loss of public housing and social stigma. The social effects of criminal charges (whether or not they lead to convictions) are mainly because arrests and legal proceedings in the United States are usually public recordVerify source|date=August 2007, thus disseminating the information about the event to the public to the detriment of the accused.

For purposes of illustration, the Public Defender Service of the District of Columbia assembled a document in 2004 outlining some collateral consequences. [http://www.pdsdc.org/communitydefender/Collateral%20Consequences%20to%20Criminal%20Convictions%20in%20DC.pdf]

Efforts to include collateral consequences in sentencing

Somewho|date=September 2008 argue that if a defendant is punished beyond the sentence prescribed by law (that is, if collateral consequences do occur), the punishment is then more severe than that intended or warranted. In the worst case, somewho|date=September 2008 claim, this might violate constitutional protectionswhich|date=September 2008.

Otherswho|date=September 2008 note that any reasonable personwho|date=September 2008 would expect social stigma and disapproval, lessened interest by employers, decreased trust by the community and other consequences for the commission of criminal conduct. Further, many collateral consequences of criminal charges are the result of private behavior and conduct which|date=September 2008 by private individuals, and thus not necessarily appropriate for government controlfact|date=September 2008. In addition, in many instances those who engage in criminal conduct can easily foresee and predict likely collateral consequences. For instance, a bookkeeper who embezzles from her employer should expect that other businesses are less likely to hire a convicted embezzler to manage their money.

The Supreme Court of the United States addressed collateral consequences of criminal convictions as early as 1984. In "Strickland v. Washington", 466 U.S. 668 (1984), the Supreme Court explored ineffective assistance of counsel with respect to collateral consequences of criminal convictions. [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=466&invol=668] In evaluating competence, the Court explained, judges should look at all relevant circumstances and evidence of appropriate measures of professional behavior, such as the ABA Standards for Criminal Justice ("ABA Standards"). The ABA Standards require defense lawyers to consider collateral consequences of conviction. Judges, accordingly, should monitor the performance of counsel. States chose to apply this rule in varying ways.

"Strickland" encouraged but did not mandate consideration of collateral consequences. Some claim that structural incentives exist for lawyers to not elicit information relevant to collateral consequences because doing so may prolong a case; others note that no attorney or judge could predict any and all collateral consequences of a criminal conviction. Since "Strickland" did not require an analysis of collateral consequences, they generally are not regarded as cause to overturn criminal convictions.

Most states do not accord much legal effect to the collateral consequences of criminal convictions. For example, in New York the consideration of collateral consequences is merely discretionary, while the elucidation of direct consequences is required. For instance, in "People v. Ford", 86 N.Y.2d 397 (N.Y. 1995) [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ny&vol=086&invol=0397] ), New York's highest court held that a defendant's guilty plea would not be overturned merely because the defendant was not advised at the time of the plea that his conviction could result in his deportation.

Likewise, the Kentucky Supreme Court in "Commonwealth v. Fuartado", 170 S.W.3d 384 (Ky. 2005) held that the failure of defense counsel to advise a defendant of potential deportation did not give rise to a claim of ineffective assistance of counsel. [http://162.114.92.72/Opinions/2003-SC-001022-DG.pdf#xml=http://162.114.92.72/dtsearch.asp?cmd=pdfhits&DocId=16647&Index=D%3a%5cInetpub%5cwwwroot%5cIndices%5cBoth%5fCourts%5fIndex&HitCount=3&hits=1e+1f+20+&hc=279&req=august+25%2C+2005 ]

In May 2005, Chief Judge Judith S. Kaye of the New York State Court of Appeals, organized the Partners in Justice Colloquium to address this issue. [http://www.nycourts.gov/ctapps/] Judge Kaye formed a working group which, in partnership with the Lawyering in the Digital Age Clinic at the Columbia University Law School, created a site that, for the first time, collects academic works, court opinions, and professionals' resources (by virtue of a message board and database) in one place. [http://www2.law.columbia.edu/fourcs]

In Federal law, the federal sentencing guidelines have a model for collateral consequences which is determined based on the date of the offense committed and the type of the offense.

External links

* [http://www2.law.columbia.edu/fourcs The "Four C's" Site]
* [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=466&invol=668 "Strickland v. Washington"]
* [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ny&vol=086&invol=0397 "People v. Ford"]
* [http://162.114.92.72/Opinions/2003-SC-001022-DG.pdf#xml=http://162.114.92.72/dtsearch.asp?cmd=pdfhits&DocId=16647&Index=D%3a%5cInetpub%5cwwwroot%5cIndices%5cBoth%5fCourts%5fIndex&HitCount=3&hits=1e+1f+20+&hc=279&req=august+25%2C+2005 "Commonwealth v. Fuartado", 170 S.W.3d 384 (Ky. 2005)]

References

* [http://www.abanet.org/crimjust/standards/collateral_toc.html ABA Standards for Criminal Justice: Collateral Sanctions and Discretionary Disqualification of Convicted Persons (3d ed. 2004)]
* Gabriel J. Chin, "Race, The War on Drugs, and the Collateral Consequences of Criminal Conviction", [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=390109&high=%20Gabriel%20CHin 6 Journal of Gender, Race & Justice 253 (2002)]
* Gabriel Chin & Richard W. Holmes, "Effective Assistance of Counsel and the Consequences of Guilty Pleas", [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=268115&high=%20Gabriel%20CHin 87 Cornell Law Review 607 (2002)]