“Prosecuting Collateral Consequences” is an important contribution
On Monday, the CCRC posted the abstract of an extensive new law review article, Prosecuting Collateral Consequences, 104 Georgetown L. J. 1197 (2016). The article, by a brand new University of North Carolina Law Professor, Elisha Jain, argues that new awareness of the collateral consequences of criminal conviction has extended the largely unreviewable discretion of public prosecutors into civil public policy decisions like deportation and licensing.
This should not be news to anyone who has followed the developing scholarship in the field, but it is a point worth making at some length. The article makes unmistakable a point that is only now emerging among many participants in the criminal justice system: that because the collateral consequences of conviction are often, particularly as to minor crimes, more important than the direct consequences of conviction, sophisticated defense lawyers, prosecutors, and judges will make negotiating about collateral consequences a central feature of the plea bargaining process.
Jain also suggests three models for thinking about the way prosecutors deal with the collateral consequences of criminal convictions. First, she suggests that some prosecutors use a Collateral Mitigation Model to soften the blow of a conviction. Second, she argues that some use a Collateral Enforcement Model, structuring pleas to maximize the impact of certain collateral consequences. Third, she suggests a Counter Balance Model, where prosecutors substitute “criminal and civil penalties to find the appropriate penalty.” This seems a useful way to think and communicate about the use of collateral consequences in plea bargaining.
But the second major point of the Article, that informed consideration of collateral consequences does not necessarily equal “better outcomes,” seems misguided. Certainly, it is true that some prosecutors will misuse collateral consequences in the plea bargaining process. But this is no less true of collateral consequences than it is of the direct consequences of conviction.
And the consequences of conviction are out there in American Law, and almost all of them will apply even if no participant in the system appreciates them. One of the essential elements of a valid plea agreement is that the plea be a “knowing” one. By definition, knowledge of the collateral consequences will inevitably increase the extent to which a plea is truly a knowing plea. Whether prosecutors try to use collateral consequences for worthy or nefarious purposes, the system is, by definition, better off if the participants in it understand the implications of their decisions.
Finally, an otherwise excellent article is marred by reliance on inaccurate data contained in the National Inventory of the Collateral Consequences of Conviction.
So, for example, Jain relies on the NICCC for the proposition that a misdemeanor conviction in the District of Columbia is an automatic bar to licensure as a security officer, a real estate appraiser, a pharmacist or a barber, and that is what the NICCC indicates. But it’s not quite right. Although the NICCC is a great leap forward in our collective understanding of the size and scope of the problem presented by collateral consequences, the careful lawyer is not well-advised to rely on the accuracy of the specific entries it contains. Used properly, as least as it stands, the NICCC is a point of entry into legal research on collateral consequences, not the end of research.
The fact remains that, even with its flaws, the Jain article is an important contribution to scholarship in the field and it prefaces the day when the collateral consequences of conviction occupy a central role in the ubiquitous world of plea bargaining criminal charges. It’s well worth a read.