Tag: federal

Federal sentencing and collateral consequences

This practice resource is available in PDF format here.  A follow-up piece, “Federal sentencing and collateral consequences II,” is here.   Federal courts are frequently asked to take into account the collateral consequences of conviction in determining what sentence to impose under the criteria in 18 U.S.C. § 3553(a). It is generally permissible for them to do so, and in line with current proposals of national law reform organizations.  At the same time, courts must guard against the risk of socioeconomic bias favoring more privileged defendants who have the most to lose in the civil sphere, and who are likely to enjoy more vigorous and effective advocacy around collateral consequences. The following discussion first reviews a federal court’s general obligation to understand the collateral consequences that apply in a particular case, and to ensure that a defendant considering a guilty plea has been adequately advised about them.  It then reviews post-Booker case law approving below-guideline sentences based on the severe collateral penalties applicable to a particular defendant, such as loss of employment, extraordinary family circumstances, sex offender registration, and even reputational harm (“the stigma of conviction”).  Finally, it discusses cases in which courts of appeal have refused to approve deep sentencing discounts based on collateral consequences in circumstances suggesting a bias favoring middle-class defendants. I.  Understanding applicable collateral consequences and ensuring that the defendant has been advised about them In general, the constitutional obligation of advisement is defense counsel’s under the Sixth Amendment, not the court’s.[1] The one situation in which judicial advisement is required under the Federal Rules of Criminal Procedure is where a defendant considering a guilty plea is not a citizen.  See FRCrP 11(b)(1)(O).  That said, a federal court is permitted (even if not required) to inform itself about the collateral consequences that may apply in a particular case in order to decide whether to take such consequences into account when fashioning a sentence. See Part II, infra.  In a few recent cases, collateral consequences have been the basis for judicial expungement of a conviction record.  The court may ask the probation office, which is part of the judicial branch, for information about collateral consequences, and probation ought to be informed about collateral consequences in any event so that it can assist defendants with reentry and reintegration. It would also be appropriate for a federal court to ask defense counsel to advise it about the collateral consequences that may apply to a particular defendant, since they may be relevant to the overall sentence.  Similarly, the court may ask defense counsel for reassurance that counsel has advised the defendant about applicable collateral consequences before accepting a guilty plea or imposing a sentence, if only as a prophylactic measure to guard against subsequent claims of ineffective assistance. The court’s authority to direct probation and defense counsel to inform it about collateral consequences stems both from its inherent power to manage its proceedings and from its authority under 18 U.S.C. § 3553(a) to craft a just and appropriate sentence. In state court the judicial advisement obligation may be more robust, both under the state constitution and applicable court rule, such as where sex offender registration or firearms dispossession may result from conviction.  However, such notice has generally not been required in the federal system.  Case law developments, notably in the past few years since the Supreme Court’s decision in Padilla v. Kentucky, are described in Chapters 4 and 8 of Love et al., Collateral Consequences of Criminal Conviction:  Law Policy and Practice (West/NACDL, 2016 ed.). While notice about collateral consequences may not be mandated in the federal system beyond the immigration context, either by counsel or court, such notice has been recognized as sound practice by the major national law reform and professional organizations of lawyers.   The Uniform Law Commission and the American Law Institute have both proposed that sentencing courts should ensure that a defendant has been informed about collateral consequences that might affect willingness to plead, and at sentencing.   See Uniform Collateral Consequences of Conviction Act §§ 5, 6 (2010) (UCCCA); Model Penal Code: Sentencing, Tentative Draft No. 3, § 6x.04(1) (2014). The ABA Standards for Criminal Justice also impose this requirement. See Collateral Sanctions and Discretionary Disqualification of Convicted Persons, Standards 19-2.3, 19-2.4(b) (2003). Moreover, the ABA Standards specifically permit a sentencing court to take into account collateral consequences in shaping a sentence.  See id., Standard 19-2.4(a) (“The legislature should authorize the sentencing court, and the court should consider, applicable collateral consequences in determining an offender’s overall sentence.”).  The ABA Standards also require the sentencing court to ensure that the overall penalty (presumably including collateral consequences) is not unduly severe. See Sentencing, Standards 18-6.1, 18-6.2, 18-3.12(e) (1993). Both the UCCCA and the Model Penal Code: Sentencing recommend giving the court authority to dispense with mandatory collateral penalties at the time of sentencing, which is a more direct way of approaching the problem of unduly severe collateral consequences, although it necessarily reaches only mandatory legal consequences.  See UCCCA §§ 10, 11; Model Penal Code: Sentencing, Tentative Draft No. 3, § 6x.04 (2) (2014).  These proposals are included in the Appendix of Love, et al., supra. State courts may also be permitted to take into account collateral consequences in crafting a sentence.  A number of state legislatures have anticipated this approach, authorizing their sentencing courts to dispense with collateral consequences at the time of sentencing.  See Colo. Rev. Stat. §§ 18-1.3-107, 18-1.3-213, 18-1.3-303; 730 Ill. Comp. Stat. Ann. § 5/5-5.5-15(b); N.J. Stat. Ann. § 2A:168A-7; N.Y. Correct. Law §§ 700-706.  These provisions are discussed in § 7:23 of Love et al., supra. II. Factoring collateral consequences into a federal sentence A number of federal courts of appeal have upheld the relevance of collateral consequences to a determination of “just punishment” and the need for deterrence under 18 U.S.C. § 3553(a), allowing them as a basis for varying downwards from the guidelines range. Second Circuit: Approved as reasonable a variance from guidelines of 78-97 months to 20 months, because the defendant’s conviction for violating rules against communicating with a prisoner “made it ‘doubtful that [he] could pursue’ his career as an academic or translator.”  United States v. Stewart, 590 F. 3d 93, 141 (2d Cir. 2009).  The court commented that “[i]t 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.” Fourth Circuit: Affirmed a 36-month variance for a child pornography defendant, based in part on the fact that he lost his teaching certificate and state pension as a result of his conduct: “Consideration of these facts is consistent with § 3553(a)’s directive that the sentence reflect the need for ‘just punishment’ and ‘adequate deterrence.’” United States Pauley,511 F.3d 468, 474 (4th Cir. 2007). Seventh Circuit: Affirmed 50-month variance from guidelines of 121-151 in child pornography case, in part because conviction ruined 24-year-old music student’s future career as a teacher and church musician, and imposed lifelong stigma.  United States v. Wachowiak,496 F.3d 744 (7th Cir. 2007).  See also United States v. Owens, 145 F.3d 923 (7th Cir. 1998) (affirming downward departure based on extraordinary family circumstances, including that defendant’s wife and three young children might have to move to public housing and receive welfare benefits if defendant received a prison sentence). Eighth Circuit: Affirmed a 7-month variance for a defendant convicted of insider trading and money laundering, based in part on how the defendant “suffered atypical punishment such as the loss of his reputation and his company.” United States v. Anderson, 533 F.3d 623, 633 (8th Cir. 2008). See alsoUnited States v. Garate, 543 F.3d 1026 (8th Cir. 2008) (court properly considered lasting effects of registering as a sex offender in deciding to impose below-guideline sentence). A research memorandum prepared in 2010 by the Federal Defender’s Sentencing Resource Counsel collects a number of district court cases, from these circuits and others, in which post-Booker variances (or, in a few cases, pre-Booker departures) were based on collateral consequences such as loss of employment or professional license, extraordinary family circumstances, and other unusual collateral effects of conviction/imprisonment.  Sex offender registration and even reputational harm (“the stigma of conviction”) have also been cited as collateral consequences warranting a variance. There are limits, however.  Recent court of appeals cases from the 6th and 10th Circuits evidence a reluctance to approve deep sentencing discounts based on collateral consequences, largely because of the resulting risk of socioeconomic bias in favor of more privileged defendants who have the most to lose in the civil sphere.  See § 3553(a)(6) (need to avoid unwarranted disparity). Such defendants will also, with the benefit of better lawyers, be more likely to advocate effectively for sentence reductions based on actual or potential collateral consequences, including reputational harm, and may even be able to avoid prison entirely. In a recent decision involving the conviction of a state legislator for bribery, the Tenth Circuit invalidated a sentence in which the sentencing court had varied from a guideline range of 41-51 months to probation, citing the adverse effects on the defendant of “publicity, loss of law license, and deterioration of physical and financial health.” United States v. Morgan, 2015 U.S. App. LEXIS 19402, *62 (10th Cir. 2015). The court commented that “it is impermissible for a court to impose a lighter sentence on white-collar defendants than on blue-collar defendants because it reasons that white-collar offenders suffer greater reputational harm or have more to lose by conviction.”  Id. at *68 (citing United States v. Prosperi, 686 F.3d 32, 47 (1st Cir. 2012)). See also United States v. Stall, 581 F.3d 276, 286 (6th Cir. 2009) (affirming variance to probation in child pornography case based in part on collateral consequences, but commenting that “We do not believe criminals with privileged backgrounds are more entitled to leniency than those who have nothing left to lose”).[2] Like the Tenth Circuit in Morgan, the Sixth Circuit has recently invalidated as substantively unreasonable sentences in three cases where the court relied upon the claimed severity of collateral consequences to justify large variances resulting in probation or token prison sentences.  In United States v. Bistline, the court of appeals reversed as substantively unreasonable a child pornography defendant’s sentence to a single night’s confinement in the court lock-up where the guideline range was 63-78 months, finding insufficient deterrence in the requirement of registration and “the publication of that registration to the community and to his friend and neighbors.” 665 F.3d 758, 765 (6th Cir. 2012).[3] More recently, in a bank and wire fraud case, the Sixth Circuit held squarely that “[t]he collateral consequences of the defendant’s prosecution and conviction are ‘impermissible factors’ when fashioning a sentence that complies with [§ 3553(a)].”  United States v. Musgrave, 761 F.3d 602, 608 (6th Cir. 2014).  In Musgrave the court invalidated a variance from a guideline range of 57-71 months to one day’s confinement, based on the defendant’s having “already ‘been punished extraordinarily’ by four years of legal proceedings, legal fees, the likely loss of his CPA license, and felony convictions that would follow him for the rest of his life.”  Id.  The court of appeals stated categorically that “when a district court varies downward on the basis of the collateral consequences of the defendant’s prosecution and conviction, the defendant’s sentence will not reflect the seriousness of the offense, nor will it provide just punishment.”  Id.   See also United States v. Peppel, 707 F. 3d 627, 641 (6th Cir. 2013) (district court improperly relied in securities fraud case on CEO defendant’s “chosen profession and status in the community” to impose a 7-day sentence, varying from a guidelines range of 97-121 months). The 11th Circuit also rejected a substantial variance based on personal characteristics of the defendant on a “no middle class discount” theory, without specifically mentioning collateral consequences.  See United States v. Kuhlman, 711 F.3d 1321 (11th Cir. 2013) (20-level variance avoiding prison time for a chiropractor convicted of $3 million health care fraud substantively unreasonable). The extent of the variances in these cases, resulting in no more than a token prison term, seems to distinguish them from cases cited earlier in this memo, in which collateral consequences were properly given some weight in reducing a prison sentence but not effectively eliminating it entirely.       [1] While courts have no constitutional obligation to advise a defendant about collateral consequences as a matter of due process, in a few recent federal cases a court’s specific and unequivocal advisement about immigration consequences was held to “cure” deficient advice of counsel.  See U.S. v. Fazio, 795 F.3d 421 (3d Cir. 2015); U.S. v. Hernandez-Monreal, 404 Fed. Appx. 714 (4th Cir. 2010).  This issue is discussed in Love et al., Collateral Consequences of Criminal Conviction:  Law Policy and Practice § 4:14 (West/NACDL, 2016 ed.). [2] In Stall the court suggested that the sentence there was attributable in significant part to “the failure of prosecutors to defend their sentencing recommendations vigorously.”  Id. at 286.  In United States v. Bistline, discussed in text, the court characterized Stall as “more a cautionary tale about prosecutorial neglect, than . . . a precedent important to our decision here.”  665 F. 3d 758, 768 (6th Cir. 2012). [3] On remand, the sentencing court imposed essentially the same sentence, and the court of appeals again reversed, remanding for reassignment. United States v. Bistline, 720 F.3d 631 (6th Cir. 2013).  On the third sentencing, the court imposed a sentence of 366 days, which the court of appeals affirmed though it was an 80% reduction from the low end of the guidelines.  See United States v. Bistline, 605 Fed. Appx. 529 (6th Cir. 2015), cert denied, 136 S. Ct. 169 (2015). Read more

New federal screening requirements for child care workers

Child care workers in every state are subject to rigorous criminal background checks that may result in mandatory bars to employment. Until now, each state has been generally free to define its own standards regarding screening for criminal history. That is about to change. By September of next year, states receiving funds under the federal Child Care and Development Block Grant (CCDBG) Act of 2014 (which appropriates over $ 2.5 billion each year to fund state child care and child welfare programs) must adopt minimum federally-defined screening standards for child care workers or risk loss of funding. The revised statutory standards subject current and prospective child care workers to a multi-level criminal background check and disqualify from employment anyone convicted of crimes against children, specified violent crimes, and drug crimes within the past 5 years.  States may opt to waive the disqualification for drug crimes on a case-by-case basis, but they are also free to adopt conviction-based disqualifications that are more restrictive than the law requires. If the new CCDBG standards were not bad enough, the Department of Health and Human Services has issued proposed rules that would make them worse.  On Monday, the CCRC joined a coalition of organizations led by the National Employment Law Project in calling on HHS to rethink proposed rules that would implement the new screening requirements. A formal comment filed by the coalition details the ways in which the proposed rules fail to adequately address the disparate impact that the requirements could have on women, African Americans, and Latinos, and takes issue with requirements in the rules that are more exclusionary than the Act requires. As observed in the comment: The diverse profile of the child care workforce justifies close scrutiny of the proposed Administration for Children and Families (ACF) regulations. Sixteen percent of child care workers are African American (compared to 11 percent of the total U.S. workforce) and another 22 percent are Latino (compared to 16 percent of the total U.S. workforce). These workers typically endure long hours while earning especially low wages (averaging just $21,490 annually), and qualifying for few, if any, benefits. Given these challenges, child care workers are especially likely to reside and work in low-income communities that are most affected by over-criminalization and mass incarceration. The child care workforce is also overwhelmingly represented by women (96 percent), and women now constitute the fastest growing segment of the correctional population. Arrest data from 2003 to 2012 indicates that arrests of women in the United States increased by 3 percent, while the rate declined by 13 percent for men. The rise in arrest rates has corresponded with a major increase in incarceration rates for women as well (exceeding the rate of men by 1.5 times, from 1980 to 2010),11 and the criminalization of African American girls in schools. However, women with an arrest or conviction record pose a low risk to public safety because they tend to enter the criminal justice system for non-violent crimes that are often drug-related or driven by poverty. In fact, women have markedly lower rates of recidivism than men. Given the diverse nature of the child care workforce, the comment urges HHS to incorporate into its implementing rules language from the Equal Employment Opportunity Commission’s guidance on criminal background screening in compliance with Title VII of the Civil Rights Act of 1964.  Among other things, the EEOC guidance calls for an individualized assessment of employees and applicants that takes into account whether a particular conviction is related to the position and any mitigating factors. The coalition urges that incorporation of these standards will encourage states to implement robust procedures governing waivers for drug crimes and any additional disqualifications defined by state law. The comment also questions a provision that would require background screening for anyone age 18 or older residing in a license-exempt home that provides child care services – a requirement not mandated by the Act itself. In addition to concerns about administrative over-reach and the increased costs that the expanded checks will saddle providers with, the comment explains that expanding background checks to adult household members would have a disparate impact on low-income communities and communities of color, which have higher than average arrest and conviction rates. Based on the experience of our organizations serving these communities, it is clear that they constitute a significant proportion of license-exempt child care providers and are more likely to have multiple generations living in the same house. Finally, the comment urges HHS to omit language encouraging self-reporting of criminal history (which may result in the reporting of inaccurate and irrelevant, though potentially harmful, information) and to encourage states to create effective procedures for appealing the results of inaccurate background checks. Revising the proposed rules to address these concerns would be consistent with HHS’s active participation in the Obama Administration’s Federal Interagency Reentry Council, which is charged with “remov[ing] federal barriers to successful reentry so that motivated individuals—who have served their time and paid their debts—are able to compete for jobs, attain stable housing, support their children and families, and contribute to their communities,” and with Title VII and existing HHS policies that address unreasonable barriers to employment and reentry. Since the Act does not do any favors for child care workers with criminal backgrounds, one can only hope that HHS will administer it in a way that strikes a reasonable balance between public safety and fairness to those that deserve a second chance. The full comment can be found here. Read more

Should DOJ be gatekeeper of president’s pardon power?

Last week Sentencing Law & Policy highlighted a new article by CCRC director Margaret Love that examines the Justice Department’s historical role in administering the president’s pardon power.  The article (“Justice Department Administration of the President’s Pardon Power: A Case Study in Institutional Conflict of Interest”) concludes that an institutional conflict of interest has made Justice a progressively less responsible and effective steward of the constitutional power, and urges the president to relocate the pardon program to the Executive Office of the President.  The article, to be published in a forthcoming issue of the University of Toledo Law Review, can be downloaded here.  Here is its abstract: The president’s constitutional pardon power has been administered by the attorney general since before the Civil War, but this arrangement has never been adequately explained or justified. On its face it appears rife with conflict of institutional interests: how could the agency responsible for convicting people and putting them in prison also be tasked with forgiving them and setting them free? In spite of these apparently antithetical missions, the Justice Department managed the pardon program in a low-key and reliable manner for well over a century, staffing it with a handful of career lawyers operating on a shoestring budget, and churning out hundreds of favorable clemency recommendations each year for the president’s consideration. While there were occasionally controversial grants there were never scandalous ones, and the president was able to use his power to good effect in wartime and in peace. It is only in the past two decades that questions have been raised about the integrity and functionality of the pardon process, focusing squarely on the agency and individuals standing as gatekeeper to the president’s power. President Obama’s decision in early 2014 to launch a large-scale clemency initiative, and the Justice Department’s unprecedented decision to rely upon a consortium of private organizations to manage it, make this a propitious time to consider whether the presidency is well-served by an arrangement making officials responsible for prosecuting crime the primary source of clemency advice. This essay concludes that the culture and mission of the Justice Department have in recent years become determinedly and irreconcilably hostile to the beneficent purposes of the pardon power, and to its regular use by the president. The only way to deal with the institutional conflict that produced and perpetuates this situation is to transfer the pardon program to the president’s direct supervision in the Executive Office of the President. This move will have a variety of benefits, including facilitating the president’s ability to oversee the workings of the criminal justice system, for which he has a special responsibility under the Constitution. More specifically, it will introduce salutary political accountability to federal prosecutions through presidential oversight and potential revision. Finally, it will give the president control for the first time in decades over his own “benign prerogative.” Read more

Amicus invited in federal expungement case

For those following developments in the federal expungement case currently pending before Judge John Gleeson in the Eastern District of New York, Jane Doe v. United States (Jane Doe II), the following order was entered by the court on August 6: ORDER: Margaret Love, a nationally-recognized authority on collateral consequences and co-author of the treatise Collateral Consequences of a Criminal Conviction: Law, Policy and Practice (NACDL/West 2013), is respectfully invited to submit an amicus brief addressing the issues raised in my July 28, 2015 Order (i.e., the authority of the court to enter a certificate of rehabilitation and the appropriateness of doing so in this case) as well as any other matters that may be relevant to the adjudication of defendant’s motion. The government’s brief is due on August 28, and petitioner’s brief is due September 11.  Argument is scheduled for September 18.  Meanwhile, no briefing schedule has yet been set in the appeal of Judge Gleeson’s May 21 expungement order in the first Jane Doe case. Read more

Federal expungement case gets curiouser and curiouser

Visitors to this site are familiar with the expungement order issued by Federal District Judge John Gleeson on May 21.  See Jane Doe v. United States, now on appeal to the Second Circuit.  A second Jane Doe, a codefendant of the first, applied for expungement on June 23, and on June 29 Judge Gleeson ordered the government to show cause on or before August 28 why her application should not be granted.  A hearing has been scheduled for September 18. Yesterday the Judge issued a new order directing the government to include in its briefing “its view as to whether I have authority to enter a certificate of rehabilitation in lieu of expungement, and if so, the appropriateness of entering such a certificate in this case.” It is not clear exactly what Judge Gleeson might have in mind by a “certificate of rehabilitation,” since there is no specific authority in federal law for a court to grant relief so styled, whatever its legal effect, just as there is no specific authority for a federal court to expunge a conviction. Responding to the first Jane Doe’s petition for relief, Judge Gleeson relied upon the court’s inherent authority to expunge her thirteen-year-old conviction “because of the undue hardship it has created for her in getting – and especially keeping – jobs.”  He remarked that “I sentenced her to five years of probation supervision, not to a lifetime of unemployment.” It is possible that Judge Gleeson has in mind the authority New York State courts have, in cases where a first felony offender is sentenced to probation, to issue a “Certificate of Relief from Disabilities” (CRD), which lifts legal barriers in New York law and has a limited effect under the nondiscrimination provisions of Article 23A of New York’s Corrections Law. But since the second Jane Doe was sentenced to a 15-month prison term, she would not have been eligible for this relief even if sentenced by a New York court, but would have had to apply to the Parole Board for a Certificate of Good Conduct (which has much the same legal effect as a CRD). As it is, both Jane Does are eligible, like other federal offenders residing or doing business in New York, for a state law certificate from New York’s parole board.  However, we are unaware that a CRD or any other type of state relief has ever been granted by a federal court in New York.  Indeed, we are unaware of any case in any State where a federal court has ordered relief from collateral consequences under a provision of state law. (If anyone knows of such a case, we welcome enlightenment.) It is true that federal sentencing judges are routinely asked by the U.S. Pardon Attorney for their recommendations in pardon cases that appear meritorious.  However, it is not clear whether either of Judge Gleeson’s Jane Does has applied for a presidential pardon.  If they were to do so, the likelihood of their pardon applications being considered any time soon, at least in the ordinary course, is quite small. We look forward to seeing the government’s brief when it is filed. Read more