Collateral consequences of criminal conviction are the additional civil state penalties, mandated by statute, that attach to a criminal
conviction
In law, a conviction is the verdict reached by a court of law finding a defendant guilty of a crime. The opposite of a conviction is an acquittal (that is, "not guilty"). In Scotland, there can also be a verdict of "not proven", which is consid ...
. They are not part of the
direct consequences of criminal conviction, such as
prison
A prison, also known as a jail, gaol (dated, standard English, Australian, and historically in Canada), penitentiary (American English and Canadian English), detention center (or detention centre outside the US), correction center, correc ...
,
fine
Fine may refer to:
Characters
* Sylvia Fine (''The Nanny''), Fran's mother on ''The Nanny''
* Officer Fine, a character in ''Tales from the Crypt'', played by Vincent Spano
Legal terms
* Fine (penalty), money to be paid as punishment for an offe ...
s, or
probation
Probation in criminal law is a period of supervision over an offender, ordered by the court often in lieu of incarceration.
In some jurisdictions, the term ''probation'' applies only to community sentences (alternatives to incarceration), such ...
. They are the further civil actions by the state that are triggered as a consequence of the conviction.
In some jurisdictions, a judge, finding a
defendant
In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.
Terminology varies from one jurisdic ...
guilty of a crime, can order that no conviction be recorded, thereby relieving the person of the collateral consequences of a criminal conviction.
Introduction
If a
defendant
In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.
Terminology varies from one jurisdic ...
is found guilty of a
crime
In ordinary language, a crime is an unlawful act punishable by a State (polity), state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definit ...
or pleads guilty, the
judge
A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...
or other sentencing authority imposes a
sentence. A sentence can take a number of forms, such as loss of privileges (e.g. driving), house arrest, community service, probation, fines and imprisonment. Collectively, these sentences are referred to as direct consequences – those intended by the judge, and frequently mandated at least in part by an applicable
law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
or
statute
A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...
.
However, beyond the terms of the sentence, a defendant can experience additional state actions that are considered by the state to be collateral consequences such as:
disenfranchisement
Disfranchisement, also called disenfranchisement, or voter disqualification is the restriction of suffrage (the right to vote) of a person or group of people, or a practice that has the effect of preventing a person exercising the right to vote. D ...
(in some countries this may be separately meted out), disentitlement of education loans (for drug charges in the United States), loss of a
professional license, or eviction from public housing. These consequences are not imposed directly by the judge, and are beyond the terms of a sentence itself for the actual crime. Instead, they are civil state actions and are referred to as
collateral consequences. In most jurisdictions, being charged with a crime can trigger state civil action in the form of an investigation to determine if the charges trigger the civil statutes that attach to the criminal charges. An example would be criminal charges that can trigger deportation, or the revocation of a professional license, such as a medical, nursing, or pharmacist license. Being subject to collateral consequences has been called a form of
civil death
Civil death ( la, civiliter mortuus) is the loss of all or almost all civil rights by a person due to a conviction for a felony or due to an act by the government of a country that results in the loss of civil rights. It is usually inflicted on per ...
.
A person accused or convicted of a crime may suffer social consequences of a conviction, such as loss of a job and social stigma. These social consequences, whether or not they lead to convictions, can arise in countries where arrests and legal proceedings are matters of
public record
Public records are documents or pieces of information that are not considered confidential and generally pertain to the conduct of government.
For example, in California, when a couple fills out a marriage license application, they have the optio ...
, thus disseminating the information about the event to the public to the detriment of the accused.
Collateral consequences in Australia
In general, the collateral consequences of a criminal conviction are similar to those in other countries. A non-citizen who fails the character requirements of the
Department of Immigration and Border Protection
The Department of Immigration and Border Protection (DIBP) was a department of the Government of Australia that was responsible for immigration, citizenship and border control (including visa issuance). It has now been subsumed into the Depart ...
may:
* be denied entry or re-entry into Australia, if outside Australia
* have their visa cancelled, requiring them to leave or to be removed from Australia.
Circumstances under which a non-citizen will fail the character test include one or more terms of imprisonment, totalling 12 or more months, whether the imprisonment took place in Australia or overseas.
In most jurisdictions, persons who are serving prison terms may be
disqualified to vote.
In some jurisdictions, a judge, finding a person guilty of an offence, can order that no conviction be recorded, thereby relieving the person of the collateral and social consequences of a conviction.
Collateral consequences in Canada
Collateral consequences were defined by
Justice Wagner of the
Supreme Court of Canada
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
in ''R v Pham'' in 2013. Justice Wagner defined collateral consequences broadly, stating that they are "any consequences for the impact of the sentence on the particular offender." He ruled that judges can take collateral consequences into account during the sentencing procedure, so long as the sentence they impose is proportionate and they do not impose "inappropriate or artificial sentences" that circumvent "Parliament's will". Justice Wagner also stated that, at least in the case of collateral consequences involving immigration, appellate courts can intervene to change a sentence if the trial judge was not aware that such a consequence would arise as a result of his or her sentence.
The issue arose in ''Pham'' because under Canadian federal law, a resident of Canada who is not a citizen can be removed from Canada if the person is convicted of certain types of criminal offences. The removal process is not part of the sentence for the criminal offence, and therefore is a collateral consequence. Once a non-resident person is required to leave Canada because of a criminal conviction, they are not entitled to come back to Canada unless they meet the rehabilitation requirements. A non-resident who is convicted of an offence carrying a life sentence is normally barred from Canada for life, if released from incarceration.
''R. v. Pham'' involved an offender whose sentence would have made him ineligible to appeal his deportation if it were not reduced in length by one day. Neither the sentencing judge nor the offender's lawyers were aware of the potential immigration consequences at the time of sentencing. At the Supreme Court, Justice Wagner concluded that, had the sentencing judge been aware of the collateral consequences, he or she would have imposed a sentence that avoided them. He therefore reduced the length of the offender's sentence by one day.
Following the Supreme Court's decision in ''R. v. Pham'', lower courts extended its applicability to other collateral consequences. For example, courts have held that stigma or the loss of employment following a conviction to be collateral consequences that can be taken into account during sentencing. The British Columbia Court of Appeal also ruled that a "lifetime ban...from income and disability assistance as a result of conviction..." is a collateral consequence and that a more lenient sentence may be imposed to avoid such a consequence.
Collateral consequences in New Zealand
Collateral consequences are generally, more or less, similar to those in the countries mentioned earlier. Any non-citizen to whom the following applies will generally not be allowed to reside in or visit New Zealand:
# deportation from any country
# a prison sentence, or series of such sentences, adding up to 5 or more years
# in the past 10 years, a sentence of imprisonment of 12 or more months (other than a sentence covered in (2) above).
Collateral consequences in the United Kingdom
Such consequences can include:
*loss of professional licence (particularly within occupations covered by the Common Law Police Disclosure policy)
*deportation (if not a citizen)
*loss of ability to obtain a
heavy goods vehicle or
passenger carrying vehicle
Passenger-carrying vehicles or PCVs are motor vehicles that are subject, in their respective jurisdictions, and/or under the respective insurance programs that define the term, to requirements beyond those typically applying to private passenger ca ...
licence after a conviction for some serious driving offences, particularly those causing death
*loss of ability to legally possess a
firearm
A firearm is any type of gun designed to be readily carried and used by an individual. The term is legally defined further in different countries (see Legal definitions).
The first firearms originated in 10th-century China, when bamboo tubes ...
Some limitations are in place in England and Wales due to the
Rehabilitation of Offenders Act 1974
The Rehabilitation of Offenders Act 1974 (c.53) of the UK Parliament enables some criminal convictions to be ignored after a rehabilitation period. Its purpose is that people do not have a lifelong blot on their records because of a relatively mi ...
, though this includes a number of exceptions.
Collateral consequences in the United States
Outline of collateral consequences
In the United States, collateral consequences can include loss or restriction of a professional license, ineligibility for public funds including welfare benefits and student loans,
loss of voting rights, ineligibility for
jury duty
Jury duty or jury service is service as a juror in a legal proceeding.
Juror selection process
The prosecutor and defense can dismiss potential jurors for various reasons, which can vary from one state to another, and they can have a specific ...
, and deportation for immigrants, including those who, while not American citizens, hold
permanent resident status.
In general, all states impose such consequences. In all jurisdictions throughout the U.S., judges are not obligated to warn of these collateral consequences upon a finding of guilt by trial, or prior to an admission of guilt by plea agreement, except as regards deportation. Deportation has been made an exception by the Supreme Court in ''
Padilla v. Commonwealth of Kentucky
''Padilla v. Commonwealth of Kentucky'', 559 U.S. 356 (2010), is a case in which the United States Supreme Court decided that criminal defense attorneys must advise noncitizen clients about the deportation risks of a guilty plea. The case extended ...
''.
There are currently few legal remedies available for these collateral consequences. In recent years, some governmental organizations have, however, discouraged actions that would cause unfairly harsh collateral consequences; for example, the
Equal Employment Opportunity Commission
The U.S. Equal Employment Opportunity Commission (EEOC) is a federal agency that was established via the Civil Rights Act of 1964 to administer and enforce civil rights laws against workplace discrimination. The EEOC investigates discrimination ...
(EEOC) urges human resources managers not to automatically exclude all ex-convicts from employment consideration, particularly if they are members of
minorities with
disproportionate incarceration rates.
Efforts to include collateral consequences in sentencing in the United States
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, this might violate protections under the
United States Constitution
The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
, including the
Eighth Amendment, which forbids "
cruel and unusual punishments
Cruel and unusual punishment is a phrase in common law describing punishment that is considered unacceptable due to the suffering, pain, or humiliation it inflicts on the person subjected to the sanction. The precise definition varies by jurisd ...
".
The
Supreme Court of the United States
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
addressed collateral consequences of criminal convictions as early as 1984. In ''
Strickland v. Washington'', the Court explored
ineffective assistance of counsel
In United States law, ineffective assistance of counsel (IAC) is a claim raised by a convicted criminal defendant asserting that the defendant's legal counsel performed so ineffectively that it deprived the defendant of the constitutional right gua ...
with respect to collateral consequences of criminal convictions. 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. However, some argue that the Constitution should require consideration of collateral consequences.
Most states do not accord equal legal effect to the collateral consequences of criminal convictions. For example, in
New York
New York most commonly refers to:
* New York City, the most populous city in the United States, located in the state of New York
* New York (state), a state in the northeastern United States
New York may also refer to:
Film and television
* '' ...
the consideration of certain collateral consequences is merely discretionary, while the elucidation of direct consequences is required. For instance, in ''People v. Peque'', New York's highest court overruled the portion of its prior ruling in ''People v. Ford'' that "a court's failure to advise a defendant of potential deportation never affects the validity of the defendant's plea," but still held that a trial court had different duties with regard to direct versus collateral consequences of guilty pleas.
Likewise, the
Kentucky Supreme Court
The Kentucky Supreme Court was created by a 1975 constitutional amendment and is the state supreme court of the U.S. state of Kentucky. Prior to that the Kentucky Court of Appeals was the only appellate court in Kentucky. The Kentucky Court of ...
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.
Rulings regarding deportation were superseded by ''
Padilla v. Kentucky'' in 2010. "... counsel must inform her client whether his plea carries a risk of deportation." The United States Supreme Court held that the collateral consequence of deportation was a consequence of such great importance that failure by counsel to advise the defendant of deportation is ineffective assistance of counsel which is a constitutional protection under the Sixth Amendment. After ''Padilla'', there has been significant litigation in the lower courts about whether attorneys are required to advise their criminal clients about other consequences of convictions.
In 2004, the
Public Defender
A public defender is a lawyer appointed to represent people who otherwise cannot reasonably afford to hire a lawyer to defend themselves in a trial. Several countries provide people with public defenders, including the UK, Hungary and Singapore, ...
Service of the
District of Columbia
)
, image_skyline =
, image_caption = Clockwise from top left: the Washington Monument and Lincoln Memorial on the National Mall, United States Capitol, Logan Circle, Jefferson Memorial, White House, Adams Morgan, ...
assembled a document outlining some collateral consequences.
In May 2005, Chief Judge
Judith S. Kaye of the
New York State Court of Appeals
The New York Court of Appeals is the highest court in the Unified Court System of the State of New York. The Court of Appeals consists of seven judges: the Chief Judge and six Associate Judges who are appointed by the Governor and confirmed by ...
organized the Partners in Justice Colloquium to address the issue of collateral consequences. Judge Kaye formed a working group which, in partnership with the Lawyering in the Digital Age Clinic at the
Columbia University Law School
Columbia Law School (Columbia Law or CLS) is the Law school in the United States, law school of Columbia University, a Private university, private Ivy League university in New York City. Columbia Law is widely regarded as one of the most prestig ...
, 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. The Columbia University Law School in collaboration with the Columbia Center for New Media Teaching and Learning developed and a
Collateral Consequences Calculator The Collateral Consequences Calculator is a legal website designed to aid judges, attorney, and legal academics in their research of collateral consequences of criminal charges. It is currently being developed as a joint project between students in ...
for looking up and comparing collateral consequences of criminal charges in New York State.
Collateral Consequences Calculator: New York State.
/ref>
In 2009, the American Bar Association created the National Inventory of Collateral Consequences of Conviction, a searchable database of the collateral consequences in all U.S. Jurisdictions. The National Inventory of Collateral Consequences of Conviction is supported by a grant from the Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of the Justice. This project was initially supported by Award No.2009-IJ-CX-0102 awarded by the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice and by the ABA Criminal Justice Section.
In Federal law, the federal sentencing guidelines
The United States Federal Sentencing Guidelines are rules published by the U.S. Sentencing Commission that set out a uniform policy for sentencing individuals and organizations convicted of felonies and serious (Class A) misdemeanors in the Unit ...
have a model for collateral consequences which is determined by the date of when the offense was committed and by the type of the offense.
See also
*
* Employment discrimination against persons with criminal records in the United States
* Loss of rights due to conviction for criminal offense
*
*''Padilla v. Commonwealth of Kentucky
''Padilla v. Commonwealth of Kentucky'', 559 U.S. 356 (2010), is a case in which the United States Supreme Court decided that criminal defense attorneys must advise noncitizen clients about the deportation risks of a guilty plea. The case extended ...
''
*
References
External links
''Strickland v. Washington''
''Commonwealth v. Fuartado'', 170 S.W.3d 384 (Ky. 2005)
The Collateral Consequences Calculator
* Uniform Law Commission
The Uniform Law Commission (ULC), also called the National Conference of Commissioners on Uniform State Laws, is a non-profit, American unincorporated association. Established in 1892, the ULC aims to provide U.S. states (plus the District of Co ...
, ttps://web.archive.org/web/20120517101850/http://www.uniformlaws.org/Act.aspx?title=Collateral%20Consequences%20of%20Conviction%20Act Uniform Collateral Consequences of Conviction Act (2009){{DEFAULTSORT:Collateral Consequences Of Criminal Charges
United States criminal law
Criminal justice ethics