New Jersey Attorney General Gurbir Grewal recently issued new Guidance reminding municipal prosecutors that they cannot categorically refuse to prosecute marijuana cases while the Legislature is considering proposals relating to decriminalization.  That said, the guidance reminds prosecutors that they have considerable discretion when deciding which maijuana cases to pursue.  While this advice is fairly standard stuff, the second half of the guidance document is a fascinating glimpse into prosecutorial decision-making as it relates to collateral consequences.  It follows a growing scholarly and legal consensus calling for opening the “black box” that is the prosecutorial mindset. For too long, the thought-processes behind prosecutorial decisions have eluded the public eye.

In essence, the guidance advises that the decision whether or not to bring charges may depend upon a defendant’s exposure to severe collateral consequences if convicted. Recognizing that prosecutors should consider collateral consequences brings their obligations closer to those imposed on defense attorneys by the Supreme Court eight years ago in Padilla v. Kentucky. Padilla required defense attorneys to know the immigration consequences faced by their clients or risk being labeled constitutionally ineffective. Many defense attorneys, public defenders, and legal aid organizations have devoted substantial effort to ensuring their clients know about housing, employment, educational, and other consequences that might attach to a conviction.

But any public defender can tell you that reliance on overburdened defense and legal aid attorneys to warn defendants and educate prosecutors about collateral consequences is bound to frustrate the goal of increasing systemic literacy.  The value of the new AG guidance is in placing a burden on prosecutors to discover and take into account the effect of collateral consequences in particular cases in deciding whether or not to prosecute.

Treating awareness about collateral consequences as a defense-only problem ignores an important reality: that the lack of awareness about collateral consequences is pervasive throughout the system, and many front line prosecutors could better appreciate the range of consequences faced by individuals after a plea deal. In most cases, prosecutors hold almost all of the cards and have significant resource advantages. They are the architects of dispositions through a variety of bargaining tactics. Some prosecutors see consideration of collateral consequences during prosecution as beyond their purview, instead focusing solely on the elements of the crime and nothing else. Others consider collateral consequences as a way to accomplish objectives not achievable by the criminal system. The Guidance from the New Jersey Attorney General aims to put both on the table.

Prosecutorial awareness of collateral consequences relates directly to a prosecutor’s obligation to do “justice,” both as a legal and ethical matter. Collateral consequences are often harsher than direct punishments themselves. They can inhibit full reentry, incapacitate unnecessarily, and essentially amount to double-punishment for the same crime. Even the most retributive prosecutor has to concede that many automatic collateral consequences are disproportionate to the original offense, especially for low-level, order-maintenance offenses.

Additionally, and although New Jersey has a broader right to counsel than exists at the federal level, some defendants remain unrepresented in low-level prosecutions that have serious consequences. This means that a defense attorney may not even exist to help the defendant gain awareness of collateral consequences. In those instances, a prosecutor’s willingness to consider such consequences is crucial to ensure fairness and equity.

In short, there is more work to be done. In addition to allowing prosecutors to consider collateral consequences in marijuana-related prosecutions, prosecutor offices should devote resources to learning about the range of consequences faced by criminal defendants in other cases. Offices should have field guides to such consequences, including the ones that are most common for certain types of offenses. This heightened awareness, coupled with a new appreciation for the role of the 21st century prosecutor tasked with doing justice, could contribute to more just plea-bargaining all around, as both parties will be more informed about whether a particular disposition is “just.”

Second, for cases involving unrepresented defendants, a working group could be created to study whether there is room for a legal basis for having prosecutors involved in the informing of defendants about potential and automatic collateral consequences that might result from a plea. Of course, any such solution would need to comport with the applicable legal and ethical obligations of prosecutors towards unrepresented persons.

Third, future guidance could be issued regarding consideration of collateral consequences during other phases of a prosecution. The same collateral consequences also appear during bail determinations, probation or parole violation proceedings, and at expungement hearings. Although these stages of a prosecution do not bear directly on guilt or innocence, the prosecutor’s stance can influence a judge’s decision, and New Jersey law affords prosecutors authority to intervene. Other states have similar statutes, meaning additional attention is needed in these areas.