This piece follows up on the CCRC practice resource titled “Federal sentencing and collateral consequences,” available here.

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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.

The PAG letter describes the several ways in which collateral consequences affect the work of sentencing courts.

1. Understanding collateral consequences and ensuring that a defendant has been notified about them
2. Considering collateral consequences in imposing sentence
3. Relief from collateral consequences after service of sentence

Noting “the considerable uncertainty about the scope of a court’s authority to adjust the quantum of punishment because of collateral consequences,” the PAG letter urges the Commission “to make clear that it is appropriate for a court in certain circumstances to consider collateral consequences in determining a guideline sentence.”  They may also be relevant consideration “in deciding whether to approve a diversionary disposition, whose purpose frequently is to avoid or mitigate collateral consequences.”

Finally, the PAG urges the Commission to consider, in connection with any study of collateral consequences it may undertake, recommending to Congress that it consider enacting the type of comprehensive relief contained in various pending law reform proposals such as the Uniform Collateral Consequences of Conviction Act.

Overall, the PAG favors a comprehensive statutory scheme that would integrate collateral consequences into the sentencing system, and move closer to a system where the judiciary (with leadership from the Commission) rather than the legislature has primary responsibility for shaping and managing the penalties to be imposed in each particular case.  Just as the court decides what sentence it will impose, the court also should play a central role in deciding which collateral consequences will apply and for how long.  This approach gives sentencing courts new tools to further the rehabilitative goals of sentencing and to avoid issues of disproportionate severity.

The role of federal courts in managing collateral consequence will be the topic of a panel discussion on September 29 hosted by the Cornell ILR School, where panelists will include Judge John Gleeson, whose 2015 decision on federal expungement is presently pending in the Second Circuit.