In two recent law review articles, Professor Paul T. Crane of the University of Richmond School of Law proposes that courts and legislators—when deciding whether a criminal defendant is entitled to a particular procedural right—should take into account potential exposure to severe collateral consequences.  The two articles together mark a major contribution to the literature.  Much attention has focused on alleviating or eliminating collateral consequences after the criminal case is closed, via restoration of rights, clemency, expungement, and other forms of relief.  Also, lawmakers, courts, and prosecutors have increasingly turned to diversions and deferred adjudications to avoid a conviction record in the first instance.  However, far less attention has been paid to the procedural rights provided to criminal defendants facing potentially severe collateral consequences.  As Crane points out, collateral consequences are “generally deemed irrelevant for determining what procedural safeguards must be afforded.”

In Crane’s first article, he argues that courts and legislatures ought to take into account a defendant’s exposure to potentially severe collateral consequences in determining whether procedural safeguards, such as the right to counsel and to a jury trial, apply.  In his second article, he proposes a framework for determining when defendants may be entitled to enhanced procedural protections.

It bears noting that scholars have closely examined whether and when a defendant represented by counsel must receive advice about collateral consequences, in the wake of the Supreme Court’s 2010 decision in Padilla v. Kentucky (holding that “counsel must inform her client whether his plea carries a risk of deportation”).  However, counsel obligations only apply if a defendant has counsel to begin with, and collateral consequences have been considered irrelevant to whether the constitutional right to counsel applies.

Crane’s 2016 article, “Charging on the Margins,” examines how, since the 1990s, prosecutors’ charging decisions have been influenced by the extension of severe collateral consequences (such as sex offender registration, mandatory deportation, and firearm dispossession) to misdemeanors.  Crane explores how prosecutors seeking to induce a particular collateral or indirect consequence might opt to charge a misdemeanor rather than a felony, thereby avoiding important procedural protections available only in felony prosecutions.  In a word, since a misdemeanor conviction is cheaper, faster, and easier to secure, it makes sense to take this route if the specific collateral consequence is the prosecutor’s primary objective.

Currently, felony defendants receive heightened procedural safeguards such as rights to a grand jury, preliminary hearing, increased discovery, counsel, and jury trial—rights that misdemeanor defendants are often denied.  Some rights are simply unavailable to misdemeanor defendants (i.e. grand juries and preliminary hearings) whereas others depend on the degree of direct punishment (i.e. only misdemeanor defendants who are actually imprisoned have a federal constitutional right to counsel).  Crane proposes in his first article that the indirect, but sometimes more severe, statutory consequences of conviction should be factored into the suite of procedural rights provided to a criminal defendant in a given case.

Professor Crane’s newest article, titled “Incorporating Collateral Consequences into Criminal Procedure,” follows up on the tantalizing proposition advanced in his earlier article by setting forth a holistic and practical three-step framework for determining what procedural rights are due to a defendant based on the collateral consequences that may follow from conviction.  The first step of the proposed approach involves determining the rationale for a particular procedural protection and how it is allocated.  The second step examines which collateral consequences should be considered as potentially triggering the procedural right at issue (considering how a consequence is imposed; to whom it applies; and whether it is mandatory or discretionary).  The third step involves deciding whether a particular consequence is sufficiently severe to trigger the procedural protection.

Crane applies his framework to two hallmark procedural protections: the right to counsel and to a jury trial.  Carrying out the three-part analysis, he concludes that defendants who would not be entitled to counsel based on direct consequences, should nonetheless be entitled to counsel based on potential collateral consequences if they face either: a mandatory collateral consequence that he posits is the functional equivalent of at least one day imprisonment (e.g., automatic firearm dispossession, disqualification from certain public benefits); or a potential collateral consequence that is the functional equivalent of more than one year in prison (e.g., immigration consequences or sex offender registration).  Applying the three-step framework to jury trials, he argues that the right to a jury should be triggered by certain severe collateral consequences that are imposed by the sovereign prosecuting the offense (e.g., sex offender registration, firearm dispossession, and certain disqualifications from public benefits).

This model would appear to achieve what Professor Crane hopes is a “theoretically coherent path forward that requires only modest adjustments to existing doctrines.”  But in many ways it would be a revolutionary departure from our present system of tying procedural rights to direct punishments, and open an entirely new way of thinking about what have historically been regarded as “civil” consequences of conviction.  If they are considered the type of penalties that trigger procedural entitlement, we are halfway to treating them as constitutional punishment.

The abstract of the 2019 article, published in the Wake Forest Law Review (Vol. 54, No. 1, 2019) follows:

A curious relationship currently exists between collateral consequences and criminal procedures. It is now widely accepted that collateral consequences are an integral component of the American criminal justice system. Such consequences shape the contours of many criminal cases, influencing what charges are brought by the government, the content of plea negotiations, the sentences imposed by trial judges, and the impact of criminal convictions on defendants. Yet, when it comes to the allocation of criminal procedures, collateral consequences continue to be treated as if they are external to the criminal justice process. Specifically, a conviction’s collateral consequences, no matter how severe, are typically treated as irrelevant when determining whether a defendant is entitled to a particular procedural protection.

This Article examines that paradoxical relationship and, after identifying a previously overlooked reason for its existence, provides a framework for incorporating collateral consequences into criminal procedure. Heavily influenced by concerns of practicality and feasibility, the proposed methodology establishes a theoretically coherent path forward that requires only modest adjustments to existing doctrines. After setting forth the three-step framework, the Article applies its insights to the two most hallowed rights in our criminal justice system: the constitutional right to counsel and the constitutional right to a jury trial.

The abstract of the 2016 article, published in the William & Mary Law Review (Vol. 57, p. 775), follows:

The American criminal justice system has experienced a significant expansion in the number and severity of penalties triggered by misdemeanor convictions. In particular, legislatures have increasingly attached severe collateral consequences to misdemeanor offenses penalties such as requirements to register as a sex offender, prohibitions on owning or possessing a firearm, and deportation. Although there is a wealth of scholarship studying the effect this development has on defendants and their attorneys, little attention has been paid to the impact collateral consequences have on prosecutorial incentives. This Article starts to remedy that gap by exploring the influence that collateral consequences exert on initial charging decisions in low-level prosecutions.

Critically, the ability to impose certain collateral consequences through a misdemeanor conviction unlocks an array of additional charging options for prosecutors. As a result, prosecutors are now more likely to engage in a practice I term strategic undercharging. A prosecutor engages in strategic undercharging when she charges a lesser offense than she otherwise could, but does so for reasons that advance her own prosecutorial aims and not as an act of grace or leniency. In other words, prosecutors can sometimes gain more by charging less. By explaining why (and when) prosecutors are likely to engage in strategic undercharging, this Article complicates the conventional wisdom that prosecutors reflexively file the most severe charges available.

This Article also proposes that collateral consequences be factored into the determination of what procedural safeguards are afforded a criminal defendant. Under existing law, collateral consequences are generally deemed irrelevant to that inquiry; the degree of procedural protection provided in a given case turns exclusively on the threatened term of incarceration. Changing this approach could have several salutary effects on the administration of collateral consequences. At a minimum, it would honor a basic principle underlying our criminal justice system: the threat of serious penalties warrants serious procedures.