When collateral consequences drive the sentence: The David Becker case
In the wake of the Brock Turner case, a new controversy was ignited in Massachusetts last month when 18-year-old David Becker, a white college-bound athlete, received two years’ probation after pleading guilty to indecent assault of an unconscious woman at a house party. As in the Turner case, many are outraged by a penalty they regard as too lenient and the result of white privilege. However, any perceived injustice in the Becker case may be less about an abuse of judicial discretion than about the limited ability of judges to mitigate collateral consequences.
Critics of the decision may be even more concerned to learn that David Becker was not actually convicted of a crime. Instead, District Court Judge Thomas Estes accepted Becker’s guilty plea and ordered a “continuance without a finding” (known as a CWOF) for two years while Becker serves a term of probation. If Becker completes the conditions of probation successfully, the charges against him will be dismissed and the record will be eligible for sealing.
The fact that Becker was not convicted is significant because it allows him to avoid both registering as a sex offender and the numerous collateral consequences that would come with having a criminal record.
As in most states, Massachusetts requires only those who are convicted of sex offenses to register, and sex offender registration obligations are imposed by operation of law at the moment of conviction. However, a Massachusetts court may choose to waive the registration requirements either upon a motion from the prosecution, or sua sponte if the sentence includes no immediate term of confinement.
If Becker were convicted and a term of imprisonment were imposed, as prosecutors had recommended (and as many of critics of the disposition would have preferred), then he would have been required to register as a sex offender for 10 to 20 years, regardless of whether he served two days or two years. His educational, employment, and housing opportunities would all have been severely diminished, he would have suffered the severe social stigma reserved for sex offenders, and, at just 18 years old, his chances of leading a normal successful life would have declined significantly. Because registration would be imposed by operation of law, Judge Estes would have been powerless to mitigate those consequences.
This was not lost on the judge, who addressed the severity and automatic nature of sex offender registration explicitly at Becker’s sentencing hearing. When the prosecution suggested that Becker could pose a risk to college classmates, Judge Estes interjected, saying:
He’s not going to college if I adopt your recommendation. He’s going to jail and he’ll be a sex offender, and he’ll register for at least the next 20 years – I don’t think he’ll go to college at all.
But the judge was also aware of the many other collateral consequences that would follow a conviction, even if probation were imposed and registration were waived. After acknowledging the persuasiveness of the of the victim’s request for leniency (in which she said she did not want to “be responsible for ruining his life”), Judge Estes stated:
If I found him guilty at this point, it would slam a lot of doors.  There have already been significant collateral consequences to simply being charged with the offense in the first place.
(The consequences of being charged became even more apparent when the University of Dayton, the college that Becker was set to attend, pulled his scholarship after the controversy erupted, even though no judgement of conviction had been entered.)
Under Massachusetts law, Judge Estes could only keep those doors ajar by declining to convict Becker. As in most states, Massachusetts judges have no authority to mitigate individual collateral consequences of conviction, so the only recourse available to a judge that believes the collateral consequences of a conviction would be too severe is to avoid conviction with a CWOF.
If it seems that David Becker got off easy, it may be because Judge Estes’ hands were tied when it came to crafting a disposition that addressed the collateral consequences Becker would be subject to. Deferred adjudication mechanisms like Massachusetts’s CWOF were created specifically to provide defendants with a second chance, and they are essential tools in the administration of justice; but they are also blunt tools that are not necessarily appropriate in every situation and can result in “all or nothing” decision-making.
If sentencing judges had broad authority to mitigate individual collateral consequences by ordering relief from mandatory consequences (as provided for in the latest revision of the Model Penal Code) or issuing certificates of relief or rehabilitation to address discretionary ones, then one can envision a judge in Judge Estes’ position being more willing to enter a conviction and impose at least some jail time. Regardless of whether that would have represented justice for Becker, his victim, or the public, the ability to mitigate individual collateral consequences would have given Judge Estes much more latitude to craft a disposition that most would agree fit the crime.
You can find more information about the availability of deferred adjudication mechanisms, including Massachusetts’ CWOF, in our state-by-state restoration of rights guides here.
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