“On Lawyering” on collateral consequences
The following post was originally published at On Lawyering, CCRC President Rich Cassidy’s blog on the law and culture of lawyering.
Judge Rules That That the Collateral Consequences of Conviction Justify the Release of a Drug Offender
“Earth’s most impassable barriers – as Lincoln the lawyer knew, as Lincoln the writer knew – are often those formed not of walls and trenches, nor even of mountains and oceans, but of laws and words.”
Senior United States District Judge Fredric Block, in an opinion issued on May 24,  ruled that the collateral consequences faced by a 20 year old woman convicted of smuggling 602 grams of cocaine into the United States from Jamaica, justified a one year term of probation, even though she faced a guideline sentence of 33-41 months of imprisonment.
Judge Block reviewed the history of collateral consequences, concluding that “[t]oday, the collateral consequences of a felony conviction form a new civil death[,]” referring to the scholarly work of my colleagues, Gabriel Jack Chin and Margaret Love. He decried the racially disparate impact of these laws, citing Michelle Alexander’s book, The New Jim Crow (2010). He noted the existence of collateral consequence reform efforts including an ABA Criminal Justice Standard and the Uniform Collateral Consequence of Conviction Act. He pointed out the sweeping breadth of collateral consequences, noting that according to the National Inventory of the Collateral Consequences of Conviction, nationwide there are some 50,000 federal and state statutes and regulations that impose collateral consequences and that some 70 to 100 million Americans are subject to them.
Judge Block reviewed the state of the law, noting that while there is a split in the circuits, the law in the Second Circuit allows a sentencing judge to consider“the impact and significance of the collateral consequences facing a convicted felon as bearing upon a just punishment.”
Finally, Judge Block put the idea into practice: he reviewed, in some detail, the collateral consequences the defendant faces, their likely impact on her life, and concluded:
[T]he collateral consequences Ms. Nesbeth will suffer, and is likely to suffer – principally her likely inability to pursue a teaching career and her goal of becoming a principal, Conn. Gen. Stat. §§ 10-145b, 145i – has compelled me to conclude that she has been sufficiently punished, and that jail is not necessary to render a punishment that is sufficient but not greater than necessary to meet the ends of sentencing.
Most District Court decisions have little, if any, significance beyond resolving the particular case before the judge. This decision is different. It’s a model for counsel and judges to bring collateral consequences to the center of the plea bargaining and sentencing process, where they belong.
The reality is that for most criminal defendants, particularly those convicted of lesser crimes, principally misdemeanors, the direct consequence of convictions, such as fines, probation and even short periods of imprisonment, are almost ephemeral when compared to the long term — largely permanent — collateral consequences of conviction.
It’s worth noting that Judge’s language consistently acknowledges a truth that the law, in crucial legal fiction, ignores: that collateral consequences are indeed “punishment.” Without that legal fiction — one that Jack Chin, among others, thinks should be attacked — collateral consequences imposed by legislation and regulation adopted after conviction would be unconstitutional as ex post facto laws.
Judge Block’s opinion is a herald of a quiet revolution in criminal litigation leading to a future in which the participants in the criminal system, judges, prosecutors, and defense lawyers, focus on collateral consequences in dealing with the punishment phase of criminal cases. Perhaps it’s even the harbinger of a fundamental reassessment of the whole idea that a massive set of civil disabilities should be added to the punishment of a criminal sentence:
While consideration of the collateral consequences a convicted felon must face should be part of a sentencing judge’s calculus in arriving at a just punishment, it does nothing, of course, to mitigate the fact that those consequences will still attach. It is for Congress and the states’ legislatures to determine whether the plethora of post- sentence punishments imposed upon felons is truly warranted, and to take a hard look at whether they do the country more harm than good.
 Adam Goodheart, Lincoln, Looking For His Legacy Today, National Geographic, (April 2015).
 United States v. Nesbeth, 15 –CR-18 (FB) (E. Dist. N.Y. May 24, 2016). Benjamin Weiser of The New York Times covered the story on Wednesday, U.S. Judge’s Striking Move in Felony Drug Case: Probation, Not Prison (May 25, 2016).
 Id. at 6.
 ABA STANDARDS FOR CRIMINAL JUSTICE, COLLATERAL SANCTIONS AND DISCRETIONARY DISQUALIFICATIONS OF CONVICTED PERSONS.
 Id. at 11, n.32, citing How to Get Around A Criminal Conviction, N.Y. TIMES, AT at 22(October 19, 2015).
 Id. at 19.
 Id. at 33.
 Id. at 40 -41.