Dismissed charges not always the best outcome?

Which is a better outcome for a defendant in a criminal case: a) dismissal of all charges; or b) finding of guilt with probation or fine? Although most defendants and their attorneys would without hesitation choose option a), the choice is not always clear cut for some young defendants in in at least one Midwestern state.

So why might a former client say that “I can’t get a job because the charges against me were dismissed“? Or ask “ Why didn’t my lawyer tell me to plead guilty?” How is there a potential advantage of a conviction compared to dismissal?

In Wisconsin, computerized court records make it easy for the public, including prospective employers, to see public records of court cases, including charges that have been dismissed. However, a statute (Wis. Stat. sec. 973.015) allows for certain records to be sealed, depending upon the defendant’s age and the classification of the crime. However, the statute does not allow for sealing records in cases that resulted in dismissal, so they remain accessible through computerized searches.

Therefore, if a defendant is greatly concerned about the potential effect of the record on future employment (or other effect on reputation), an expunged record may be preferable to a public record of a dismissed charge. The defense attorney should at least be aware of the options and explain them to the client, rather than assuming which option the client would prefer. This example also shows that it is critically important for defense lawyers to be aware of the relief that may be available to avoid or mitigate collateral consequences.

Defense attorneys are becoming increasingly aware that for some defendants, collateral (or civil) consequences may be more important than the direct penalties ordered in the criminal case. Although the counter-intuitive situation described above may be unique to Wisconsin, the broader need to consider collateral consequences is universal.

Unfortunately, public defenders in many jurisdictions have neither the resources nor the statutory authority to provide representation on civil issues like immigration, housing, employment, or government benefits. However, defenders increasingly strive within legal and budgetary limitations to provide holistic representation, which includes sensitivity and responsiveness to client concerns transcending the criminal penalties that they face.

Ordinarily clients want to resolve cases without incarceration. An avid hunter, however, may take jail time in March if the only other option precludes venison in November. By knowing the client’s priorities, defense attorneys can best explore and recommend options to the client’s benefit.

More commonly, defense attorneys can use knowledge of potential consequences to negotiate persuasively for reduction or dismissal of charges. Often, prosecutors and judges are not interested in adverse collateral consequences for defendants. An alternate disposition may address the concerns of the prosecutor without having the same collateral consequences as the original charge.

In collaboration with Margaret Love, her research team, and the Colorado Public Defender, the Wisconsin State Public Defender has prepared some state-specific materials on collateral consequences. Although they are not directly applicable in the other 49 or in Washington, D.C., perhaps they can serve as a template for similar materials in your jurisdiction (particularly, the interview form, which is the last item below):

* Civil Consequences of Conviction: The Impact of Criminal Records under Wisconsin      Law

* Felony Convictions and Employment (Wisconsin Law)

* Client Employment Interview Form

Michael Tobin

Michael Tobin is Deputy Public Defender for the State of Wisconsin, where he has been engaged in law reform activities for more than 30 years. He understands how important collateral consequences are to a defense lawyer’s practice, and he has compiled comprehensive on-line practice materials linking consequences to triggering criminal offenses under state law.

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