Role of Defense Lawyers in the Mitigation of Collateral Consequences

Collateral consequences are the loss of rights a person suffers after being convicted of a crime.  They have previously been described as having the potential to cause “civil death.”  Such consequences are different from the punishments that might be imposed by a judge as part of a criminal case.  This is because collateral consequences are not found in criminal statutes.  Instead, they often arise out of the myriad civil statutes or civil consequences that are triggered by the criminal conviction.  This means that most collateral consequences require no judge to impose them, and they afford no opportunity for due process.

Most crimes are punishable by a statutorily allowed maximum period of prison or jail time.  For example, a standard, first offense drunk driving in Michigan, carries with it the possibility of up to 93 days in jail.  However, for cases involving a test result of .17 or above, the maximum penalty increases to 180 days.  In a drunk driving causing death, charged as second-degree murder, is punishable by life in the state prison, or any term of years.  These specific statutory maximums are significant because a criminal lawyer advising her client about a conviction can usually predict, at least within a range, the actual time a client will spend behind bars. The same is most certainly not true of collateral consequences.

A case addressing this is United States v. Nesbeth, 188 F.Supp.3d 179 (2016).  Nesbeth was convicted of importation of cocaine and possession of cocaine with intent to distribute.  The advisory guidelines would have allowed a sentence of between 33 and 41 years in prison, but because of the significant collateral consequences, the judge saw fit to give him no jail at all, meaning straight probation.  The opinion explaining why should be required reading for all criminal defense attorneys.

Judge Block, a senior judge in the Eastern District of New York, wrote the opinion because “from my research and experience over two decades as a district judge, sufficient attention has not been paid at sentencing by me and lawyers—both prosecutors and defense counsel—as well as by the Probation Department in rendering its pre-sentence reports, to the collateral consequences facing a convicted defendant.”

In his opinion, Judge Block indicates that the broad range of collateral consequences imposed because of a criminal conviction “serve no useful purpose other than to punish the defendant.”  It is the judge’s opinion that these consequences should be considered in rendering a lawful sentence. Furthermore, writes Block, the impact of these collateral consequences can be devastating. As Professor Michelle Alexander has explained, these consequences “amount to a form of ‘civi[l] death’ and send the unequivocal message that ‘they’ are no longer part of ‘us.’”

To understand the enormity of this problem, the opinion suggests that when one considers both federal and state statutes, there are as many as 50,000 regulations that “impose penalties, disabilities, or disadvantages on convicted felons.”  The number is certainly smaller for misdemeanors like drunk driving, but even so, the number is still vast.

The responsibilities of the defense attorney in a criminal case are also addressed is the opinion.  Judge Block indicates that there is no settled opinion as to a defense attorney’s ethical duty to advise a client of collateral consequences at the plea or sentencing stage of a case. For reasons stated, however, the judge opines that “it is the obligation of both the defense lawyer and the prosecutor, as well as the Probation Department in the preparation of its PSR, to assess and apprise. The National Association for Criminal Defense Lawyers agrees, and recommends a criminal defense attorney should factor collateral consequences into every stage of representation.  Most notably, they should factor into sentencing, where such consequences could serve to mitigate the sentence imposed.

If you are facing criminal charges in Michigan, then be sure to discuss with your lawyer any punishment a judge may impose and any collateral consequences that might apply.  You should also understand that, according to the Nesbeth opinion, there is an inverse relationship between the severity of applicable collateral consequences and the severity of any sentence imposed by a judge.