Yesterday U.S. District Judge Frederic Block (E.D.N.Y.) issued an extraordinary opinion explaining his decision to impose a non-prison sentence on a young woman convicted of importing cocaine, based on the severe collateral consequences that she faces.  While other federal courts have factored collateral consequences into the balancing of factors required by 18 U.S.C. § 3553(a), this is the first time a court has justified its action in such detail.  Calling the opinion “groundbreaking,” CCRC board member Jack Chin told the New York Times that it is “by some distance the most careful and thorough judicial examination” of collateral consequences in sentencing: “It’s going to generate debate on a critical issue in the criminal justice system — the ability of people convicted of crimes to get on with their lives.”

Here is how the opinion begins:

Chevelle Nesbeth was convicted by a jury of importation of cocaine and possession of cocaine with intent to distribute. Her advisory guidelines sentencing range was 33-41 months. Nonetheless, I rendered a non-incarceratory sentence today in part because of a number of statutory and regulatory collateral consequences she will face as a convicted felon.  I have incorporated those consequences in the balancing of the 18 U.S.C. § 3553(a) factors in imposing a one-year probationary sentence.

I am writing this opinion because from my research and experience over two decades as a district judge, sufficient attention has not been paid at sentencing by me and lawyers—both prosecutors and defense counsel—as well as by the Probation Department in rendering its pre-sentence reports, to the collateral consequences facing a convicted defendant. And I believe that judges should consider such consequences in rendering a lawful sentence.

There is a broad range of collateral consequences that serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences.  Many—under both federal and state law—attach automatically upon a defendant’s conviction.

The effects of these collateral consequences can be devastating.  As Professor Michelle Alexander has explained, “[m]yriad laws, rules, and regulations operate to discriminate against ex-offenders and effectively prevent their reintegration into the mainstream society and economy.  These restrictions amount to a form of ‘civi[l] death’ and send the unequivocal message that ‘they’ are no longer part of ‘us.’”

Preparatory to sentencing Ms. Nesbeth, I afforded counsel the opportunity to opine as to whether collateral consequences should indeed be part of the § 3553(a) mix, and requested written submissions. The Government was essentially non-committal.

Not surprisingly, the Office of the Federal Defender—which represented Ms. Nesbeth—gave a positive response. Commendably, both parties’ submissions detailed the collateral consequences she faces.

Because of the significance which I attach to the need of the criminal justice system to embrace collateral consequences as a sentencing issue, I write extensively, addressing in turn: (I) The History of Collateral Consequences; (II) The Depth and Breadth of Post-Conviction Statutory and Regulatory Collateral Consequences; (III) The Governing Caselaw; (IV) Ms. Nesbeth’s Collateral Consequences and the Balancing of all § 3553(a) Factors; (V) The Shaping of the Sentence; and (VI) The Responsibilities of Counsel and the Probation Department.

After reviewing the history of collateral consequences and recent reform efforts, Judge Block sets out the governing federal caselaw, noting the split in the circuits over whether it is permissible to reduce a prison sentence because of collateral consequences (slip op. at 15-19, footnotes omitted):

There is a circuit split, and as the Tenth Circuit recently stated, “the Supreme Court has [not] addressed the issue.” United States v. Morgan, 2015 WL 6773933, at *20 (10th Cir. Nov. 6, 2015) (unpublished). In Morgan, the Tenth Circuit aligned itself with the “reasoning of the Sixth, Seventh, and Eleventh Circuits” in holding that “[b]y considering publicity, loss of law license, and deterioration of physical and financial health as punishment, the [district] court impermissibly focused on the collateral consequences of Morgan’s prosecution and conviction,” because these factors did not “reflect upon the seriousness of his offense” under § 3553(a)(2)(A).  Id. at *19. Its rationale was that those factors “impermissibly favor criminals, like Morgan, with privileged backgrounds.” Id.

This rationale seemingly underlined the other three circuit-court decisions. For example, in United States. v. Musgrave, 761 F.3d 602 (6th Cir. 2014), the Sixth Circuit held that consideration of “four years of legal proceedings, legal fees, the likely loss of [defendant’s] CPA license, and [his] felony convictions that would follow him for the rest of his life,” were impermissible considerations because “these sorts of consequences—particularly ones related to a defendant’s humiliation before his community, neighbors, and friends—would tend to support shorter sentences in cases with defendants from privileged backgrounds, who might have more to lose along these lines.” Id. at 608; see also United States v. Stefonek, 179 F.3d 1030, 1038 (7th Cir. 1999) (rejecting “middle class” sentencing discounts,” reasoning that “[c]riminals who have the education and training that enables people to make a decent living without resorting to crime are more rather than less culpable than their desperately poor and deprived brethren in crime”); United States v. Kuhlman, 711 F.3d 1321, 1329 (11th Cir. 2013) (“The Sentencing Guidelines authorize no special sentencing discounts on account of economic or social status.”).

But in Musgrave, the Sixth Circuit squarely held that in fashioning a sentence that “must reflect the seriousness of the offense, promote respect for the law, and provide just punishment,” as required under § 3553(a)(2), “[t]he collateral consequences of the defendant’s prosecution and conviction are ‘impermissible factors.’” 761 F.3d at 608.

On the other side of the ledger, the Fourth Circuit has viewed the loss of a defendant’s “teaching certificate and his state pension as a result of his conduct” as appropriate sentencing considerations, “consistent with § 3553(a)’s directive that the sentence reflect the need for ‘just punishment and ‘adequate deterrence.’” United States v. Pauley, 511 F.3d 468, 474-75 (4th Cir. 2007) (citation omitted).

Where, then, does the Second Circuit stand? 

In United States v. Stewart, 590 F.3d 93 (2d Cir. 2009), the district court—despite a guidelines range of 78 to 97 months—sentenced the defendant to 20 months’ imprisonment in part because the “conviction made it doubtful that the defendant could pursue his career as an academic or translator, and therefore that the need for further deterrence and protection of the public is lessened because the conviction itself already visits substantial punishment on the defendant.” Id. at 141 (internal quotation marks omitted). The circuit court affirmed, reasoning that the district court’s analysis was “required by section 3553(a),” and commented: “It is difficult to see how a court can properly calibrate a ‘just punishment’ if it does not consider the collateral effects of a particular sentence.” Id. at 141-142.^[43]

The Second Circuit’s embrace of collateral consequences as bearing upon the concept of “just punishment,” has more recently been underscored in  United States v. Thavaraja, 740 F.3d 253 (2d Cir. 2014), where the circuit court recognized that deportation is a permissible § 3553(a) factor.  See id. at 262-63.

There, the defendant, who was convicted of conspiracy to provide material support to a foreign terrorist organization and conspiracy to bribe public officials, faced a guidelines sentence of 240 months. Id. at 255, 257.  The district court imposed a below-guidelines sentence of 108 months in light of several factors, among them that the defendant faced likely deportation upon the completion of his sentence.  Id. at 256. The Government argued that immigration consequences of a conviction should not be considered by a sentencing judge, but the Second Circuit disagreed.  It explained: “In determining what sentence is ‘sufficient, but not greater than necessary,’ to serve the needs of justice, a district court may take into account the uncertainties presented by the prospect of removal proceedings and the impact deportation will have on the defendant and his family.”  Id. at 262-63.

Happily, I am a creature of the Second Circuit, and its embrace of the impact and significance of the collateral consequences facing a convicted felon as bearing upon a just punishment is the enlightened view—especially where it impacts a poor, underprivileged defendant, in contrast to the “middle-class discounts” that apparently animated those circuit courts that have taken a different view.

(More information on the caselaw surrounding federal sentences and collateral consequences can be found in a CCRC practice resource available at this link.) 

Judge Block then proceeds to describe Ms. Nesbeth’s offense and lists the collateral consequences resulting from it that will have a profound and permanent effect on her, both immediately and in the future.  For example, as a college student she will be ineligible for student loans, and cannot be issued a passport to visit her family in Jamaica during her probationary period.  Because her conviction will likely preclude her becoming a teacher or otherwise working with children, she felt obliged to switch her college major from education to sociology.

Judge Block notes that there were other grounds on which he could have imposed a non-incarcerative sentence, including her aberrant behavior and post-conviction rehabilitation, but that he chose to rely on the severe punishment inflicted by collateral consequences:

Even if I were not to consider collateral consequences, the conventional balancing of the § 3553(a) factors might warrant a non-incarceratory sentence. But I need not make that decision because the collateral consequences Ms. Nesbeth will suffer, and is likely to suffer—principally her likely inability to pursue a teaching career and her goal of becoming a principal, Conn. Gen. Stat. §§10-145b, 145i—has compelled me to conclude that she has been sufficiently punished, and that jail is not necessary to render a punishment that is sufficient but not greater than necessary to meet the ends of sentencing.

This surely is not meant to suggest that a convicted defendant’s collateral consequences are always likely to result in a non-incarceratory sentence. Each case must, of course, be separately considered, and the balancing of all the § 3553(a) factors may certainly warrant prison—and even significant prison time—for someone else under different circumstances.

I have imposed a one-year term of probation. In fixing this term, I have also considered the collateral consequences Ms. Nesbeth would have faced with a longer term of probation, such as the curtailment of her right to vote and the inability to visit her father and grandmother in Jamaica because of the loss of her passport during her probationary term.

Finally, Judge Block comments on the obligation of defense counsel to advise the defendant, and of prosecution and probation to advice the court, about the “postsentence punishments” a defendant will face as a result of conviction:

. . . . [I]t is undecided whether counsel’s failure to advise his client of any significant collateral consequences at the pleading stage or to address the issue at the sentencing phase, could ever rise to the level of ineffective assistance under the constitutional standard articulated in Strickland.

What is established, however, is defense counsel’s “overarching duty to advocate the defendant’s cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution.” Strickland, 466 U.S. at 688. Thus, counsel has at least a professional responsibility to timely inform both the court, as well as his client, of the significant collateral consequences facing the defendant as a result of a conviction.

Prosecutors also have responsibilities. Pursuant to 28 U.S.C. §530B(a), “[a]n attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.” 

Rule 3.8 of New York’s Rules of Professional Conduct provide for “Special Responsibilities of Prosecutors,” which mostly detail the rules for disclosing relevant information and evidence and dealing with defendants who lack counsel. But comment 1 to the rule provides a broad general statement that, “[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” To the extent collateral consequences are part of the § 3553(a) mix, prosecutors have an obligation to be candid with the court at sentencing about the applicable collateral consequences and how much weight they should be accorded.

The Probation Department also has obligations.  Commendably, the addendum it provided at the Court’s behest advising of the federal collateral consequences Ms. Nesbeth faces proved very useful.  The Probation Department should include a collateral-consequences section in all future pre-sentence reports.  The Federal Rules of Criminal Procedure authorize the Court to make such a request: Rule 32(d)(1) provides that “the presentence report must . . . (D) identify any factor relevant to: (I) the appropriate kind of sentence, or (ii) the appropriate sentence within the applicable sentencing range; and (E) identify any basis for departing from the applicable sentencing range,” and Rule 32(d)(2) requires that the pre-sentence report also include “the defendant’s history and characteristics” and “any other information that the court requires, including information relevant to the factors under 18 U.S.C. § 3553(a).” 

Thus, it is the obligation of both the defense lawyer and the prosecutor, as well as the Probation Department in the preparation of its PSR, to assess and apprise the court, prior to sentencing, of the likely collateral consequences facing a convicted defendant.

Publicly available resources make this obligation reasonably easy to satisfy. 

Judge Block notes in conclusion that even if she is spared prison, she will still be subject to “a plethora of post-sentence punishments,” and he calls on legislatures to determine whether they are “truly warranted,” and to “take a hard look at whether they do the country more harm than good.”

He concludes by expressing the hope that “this opinion will be of value to the bench and bar, and to all those who are committed to serving the ends of justice.”  That seems an understatement. 

The full opinion is available at this link. View the CCRC’s practice resource on federal sentences and collateral consequences here.