A former University of Maryland student who pled guilty last April to throwing a punch that resulted in the death of a fellow student, has been allowed the benefit of a nonconviction disposition that will likely result in the expungement of his record. According to a report in the Washington Post,
Prince George’s County Judge Albert W. Northrop ordered the manslaughter conviction of Arasp Biparva in the 2014 killing of Jack Godfrey vacated. The judge also granted Biparva probation before judgment, which means the charges can later be expunged from public records.
The modified sentence will help Biparva, 25, as he finds a job in accounting, according to his attorney.
“Currently the conviction will interfere with the application process and prevent Mr. Biparva from obtaining the certifications he needs to advance his career,” his attorney, Barry Helfand, said in a request for the modified sentence.
Should federal courts be required to take collateral consequences into account when they impose a sentence – or should they at least be permitted to consider them? Should courts also be authorized to provide federal defendants some relief from collateral consequences after their sentences have been served? Some courts are already doing this without specific authorization, as was pointed out in a letter sent last week to the U.S. Sentencing Commission by one of its advisory committees, urging that the Commission take up the subject of collateral consequencdes as a priority for the coming year.
The Practitioners Advisory Group (PAG) urged the Commission to recognize collateral consequences as presenting issues of concern to federal courts for which it should provide some guidance:
The collateral consequences of conviction – specifically, the legal penalties and restrictions that take effect automatically without regard to whether they are included in the court’s judgment – can frequently be the most important aspect of punishment from a defendant’s perspective. In a number of recent cases, courts have has imposed a more lenient sentence in consideration of the severe collateral consequences the defendant would experience. In other cases, courts have sought creative ways to relieve defendants from the effect of collateral consequences that persist long after the sentence has been fully served. We briefly describe below the ways in which collateral consequences affect the work of sentencing courts. We urge the Commission to take this matter under advisement in the months ahead, looking toward a hearing in the spring.
A new article published in the Georgetown Law Journal argues that collateral consequences are becoming a valuable tool for prosecutors in the plea bargaining process, enabling them to leverage their existing power to control the outcome of criminal cases. In Prosecuting Collateral Consequences, Eisha Jain of the University of North Carolina law faculty attributes this trend to a new awareness of collateral consequences made possible by initiatives like the National Inventory of the Collateral Consequences of Conviction, which show that even minor convictions can trigger serious civil penalties. She explains the “structural incentives” that offer prosecutors an opportunity to avoid or trigger important civil penalties, or to bargain for enhanced criminal penalties in exchange for circumventing a particularly unwelcome collateral consequence (like deportation or eviction).
Jain concludes that, for some prosecutors, “enforcing collateral consequences serves as an administratively efficient substitute for a criminal conviction” and a way to “promote their own policy preferences.” In this fashion, prosecutors’ largely unreviewable discretion is extended to “an array of legal consequences, regulatory policies, and public interests.”
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
In an unusual case involving judicial failure to warn about the immigration consequences of a guilty plea, the Wisconsin Supreme Court has held that the likelihood of inadmissibility (as opposed to deportation) was sufficient to set aside three guilty pleas entered more than a decade before. State v. Valadez, 216 WI 4 (Jan. 28, 2016). The decision suggests that it may be possible to challenge guilty pleas years after the fact, in any jurisdiction where a statute or court rule requires the court to warn about immigration consequences before accepting a guilty plea.
In the June 2 issue of the New York Law Journal, Robert J. Anello and Richard F. Albert argue that “criminal law concepts designed to punish human beings—bad boys and girls—are ill-suited to corporate beings.” They point out that corporations convicted of crime are rarely required to live with the kind of collateral consequences that result in loss of livelihood and social stigma for individuals (“Convicted Corporations Aren’t Really Bad Boys“). They describe how the government recently made “significant efforts to blunt the effects” of conviction on four major international banks that pleaded guilty to manipulation of foreign exchange rates, so that none of them ended up subject to “rules that would have restricted [their] ability to continue doing business in the United States.” The banks are currently seeking a waiver of Labor Department rules that would otherwise bar them from dealing with pension and retirement plans, and the government has postponed sentencing pending the outcome of these efforts. Read more
We cross-post a recent comment about the Obama clemency initiative from Professor Doug Berman’s Sentencing Law and Policy blog because it proposes to supplement the constitutional pardon power with a relief mechanism built into the legal system (there, a sentence reduction by the court rather than presidential commutation). It reflects the institutional and practical concerns of Enlightenment philosopher Cesare Beccaria, who proposed in 1764 that
Clemency is a virtue which belongs to the legislator, and not to the executor of the laws; a virtue which ought to shine in the code, and not in private judgment.
Beccaria’s view that clemency should “shine in the code” has a special resonance where collateral consequences are concerned since pardons have become so rare in recent years. Indeed, Judge John Gleeson might have invoked Beccaria when he expunged the conviction of a woman who was unable to find employment because of her criminal record. We intend to keep arguing in this space for a statutory restoration remedy for the federal system, whatever form it may take. Read more
A new paper by CCRC editor Margaret Love describes how the newly revised sentencing articles of the Model Penal Code manage collateral collateral consequences by integrating them into the sentencing process. The article, published in the Wisconsin Law Review, compares the new MPC provisions with the collateral consequences provisions of the original 1962 Code. Here is the abstract:
The debased legal status that results from a criminal conviction makes possible a regime of restrictions and exclusions that feels like punishment to those who are subject to it and looks like punishment to the community. Policy makers are beginning to understand that the goal of reintegrating criminal offenders into society is not well served by a legal system that makes them permanently ineligible for many of its benefits and opportunities and effectively marks them as social outcasts. Because courts have failed to address issues of severity and proportionality raised by punitive mandatory collateral penalties, and because legislatures have been unwilling to dial them back in any meaningful fashion, reformers have turned to the sentencing system to restore collateral consequences to an appropriate regulatory role.
One such reform proposal is the American Law Institute’s Model Penal Code: Sentencing (MPC), which integrates collateral consequences into a sentencing system that gives the court rather than the legislature responsibility for shaping and managing criminal punishment in particular cases. Just as the court decides what sentence it will impose within a statutory range, the court also decides which mandatory collateral penalties will apply and for how long. This gives sentencing courts new tools to further the rehabilitative goals of sentencing, and at the same time it enables them to avert issues of proportionality an
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.