Federal courts are frequently asked to take into account the collateral consequences of conviction in determining what sentence to impose under the criteria in 18 U.S.C. § 3553(a). It is generally permissible for them to do so, and in line with current proposals of national law reform organizations. At the same time, courts must guard against the risk of socioeconomic bias favoring more privileged defendants who have the most to lose in the civil sphere, and who are likely to enjoy more vigorous and effective advocacy around collateral consequences.
The following discussion first reviews a federal court’s general obligation to understand the collateral consequences that apply in a particular case, and to ensure that a defendant considering a guilty plea has been adequately advised about them. It then reviews post-Booker case law approving below-guideline sentences based on the severe collateral penalties applicable to a particular defendant, such as loss of employment, extraordinary family circumstances, sex offender registration, and even reputational harm (“the stigma of conviction”). Finally, it discusses cases in which courts of appeal have refused to approve deep sentencing discounts based on collateral consequences in circumstances suggesting a bias favoring middle-class defendants. Read more
The Supreme Court of Georgia has extended the doctrine of Padilla v. Kentucky to a failure to advise about parole eligibility. In Alexander v. State, decided on May 11, a defendant sentenced to a 15-year prison term for child molestation sought to set aside his guilty plea on grounds that his defense counsel had not warned him that, as a recidivist, he would not be eligible for parole. The Georgia high court agreed that this failure constituted deficient performance under the doctrine of Strickland v. Washington, overruling its 1999 precedent holding that the Sixth Amendment did not require a defense lawyer to advise a client about this “collateral consequence” of conviction. The Georgia court distinguished its 2010 post-Padilla decision declining to find a warning by the court necessary, finding a clear constitutional distinction between defense counsel’s Sixth Amendment obligation to advise a client considering a guilty plea and the court’s due process obligation to warn a defendant in the same situation.
At the same time, the court declined to approve a lower court’s earlier extension of Padilla to sex offender registration, reserving for another day the question whether this consequence is “a drastic measure” that is “intimately related” to the criminal case. Most of the post-Padilla decisions involving parole eligibility have rested on the dubious pre-Padilla erroneous advice exception to the collateral consequences rule, an exception that the Alexander court firmly rejected.
In a recent national study of case processing in the nation’s misdemeanor courts, Wall Street Journal reporters Gary Fields and John Emschwiller document how “blindingly swift” justice is for the “millions of Americans charged each year with misdemeanor crimes”:
In Florida, misdemeanor courts routinely disposed of cases in three minutes or less, usually with a guilty plea, according to a 2011 National Association of Criminal Defense Lawyers study. In Detroit, court statistics show, a district judge on an average day has over 100 misdemeanor cases on his or her docket–or one every four minutes. In Miami, public defenders often hardly have time to introduce themselves to their misdemeanor clients before the cases are over. . . . In a Houston courtroom one day recently, defendants–sometimes individually, sometimes in groups of up to nine . . . , pleaded guilty, received their sentences and got a “good luck” from the judge in less than 30 seconds.
It appears that very little has changed in the forty years since the Supreme Court in Argersinger v. Hamlin bemoaned the assembly line that characterized the processing of misdemeanor offenses at that time. The Court noted:
Wherever the visitor looks at the system, he finds great numbers of defendants being processed by harassed and overworked officials. Suddenly it becomes clear that, for most defendants in the criminal process, there is scant regard for them as individuals. They are numbers on dockets, faceless ones to be processed and sent on their way.” (emphasis added)
The Argersinger Court noted that uncounseled defendants were pleading guilty, often at their initial appearance before a judge, and that there were harmful consequences that flowed from convictions of even so-called minor crimes. To remedy the national crisis in misdemeanor courts that existed even in the 1970s, the Court held that the Gideon right to Read more
As the Supreme Court recently acknowledged in Lafler v. Cooper (2012), American criminal justice “is for the most part a system of pleas, not a system of trials.” Nowhere is that statement truer than in the lower courts, where millions of misdemeanor arrests are resolved, or, to use the lingo of the criminal court, “disposed of,” without even a whiff of a trial.
In a provocative New York Times Op-Ed, “Go to Trial: Crash the Justice System,” Michelle Alexander raised the prospect of organizing people to refuse to plea bargain. Professor Jenny Roberts takes a cue from Alexander and manages to be even more rebellious. In Crashing the Misdemeanor System, 70 Wash. & Lee L. Rev. 1089 (2013), she urges much more specifically that defense attorneys focus their energy on taking down extant misdemeanor systems that are best characterized as guilty plea mills.
Roberts argues that “the most minor misdemeanor conviction has serious implications for so many people,” and bemoans the fact that nevertheless most misdemeanors are given short shrift by all institutional players — judges, prosecutors and defense attorneys alike. Her article is a clarion call for defense attorneys to reimagine, refocus and reinvigorate their misdemeanor practice, especially in an era of massive arrests for minor crimes made popular by Broken Windows, or quality-of-life, policing.