Tag: sentencing

“On Lawyering” on collateral consequences

The following post was originally published at On Lawyering, CCRC President Rich Cassidy’s blog on the law and culture of lawyering.  Judge Rules That That the Collateral Consequences of Conviction Justify the Release of a Drug Offender “Earth’s most impassable barriers – as Lincoln the lawyer knew, as Lincoln the writer knew – are often those formed not of walls and trenches, nor even of mountains and oceans, but of laws and words.”[1] Senior United States District Judge Fredric Block, in an opinion issued on May 24, [2] ruled that the collateral consequences faced by a 20 year old woman convicted of smuggling 602 grams of cocaine into the United States from Jamaica, justified a one year term of probation, even though she faced a guideline sentence of 33-41 months of imprisonment. Judge Block reviewed the history of collateral consequences, concluding that “[t]oday, the collateral consequences of a felony conviction form a new civil death[,]”[3] referring to the scholarly work of my colleagues, Gabriel Jack Chin and Margaret Love. He decried the racially disparate impact of these laws, citing Michelle Alexander’s book, The New Jim Crow (2010). He noted the existence of collateral consequence reform efforts including an ABA Criminal Justice Standard [4]and the Uniform Collateral Consequence of Conviction Act.[5] He pointed out the sweeping breadth of collateral consequences, noting that according to the National Inventory of the Collateral Consequences of Conviction, nationwide there are some 50,000 federal and state statutes and regulations that impose collateral consequences and that some 70 to 100 million Americans are subject to them.[6] Judge Block reviewed the state of the law, noting that while there is a split in the circuits, the law in the Second Circuit allows a sentencing judge to consider“the impact and significance of the collateral consequences facing a convicted felon as bearing upon a just punishment.”[7] Finally, Judge Block put the idea into practice: he reviewed, in some detail, the collateral consequences the defendant faces, their likely impact on her life, and concluded: [T]he 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.[8] Most District Court decisions have little, if any, significance beyond resolving the particular case before the judge. This decision is different. It’s a model for counsel and judges to bring collateral consequences to the center of the plea bargaining and sentencing process, where they belong. The reality is that for most criminal defendants, particularly those convicted of lesser crimes, principally misdemeanors, the direct consequence of convictions, such as fines, probation and even short periods of imprisonment, are almost ephemeral when compared to the long term — largely permanent — collateral consequences of conviction. It’s worth noting that Judge’s language consistently acknowledges a truth that the law, in crucial legal fiction, ignores: that collateral consequences are indeed “punishment.” Without that legal fiction — one that Jack Chin, among others, thinks should be attacked — collateral consequences imposed by legislation and regulation adopted after conviction would be unconstitutional as ex post facto laws. Judge Block’s opinion is a herald of a quiet revolution in criminal litigation leading to a future in which the participants in the criminal system, judges, prosecutors, and defense lawyers, focus on collateral consequences in dealing with the punishment phase of criminal cases. Perhaps it’s even the harbinger of a fundamental reassessment of the whole idea that a massive set of civil disabilities should be added to the punishment of a criminal sentence: While consideration of the collateral consequences a convicted felon must face should be part of a sentencing judge’s calculus in arriving at a just punishment, it does nothing, of course, to mitigate the fact that those consequences will still attach. It is for Congress and the states’ legislatures to determine whether the plethora of post- sentence punishments imposed upon felons is truly warranted, and to take a hard look at whether they do the country more harm than good.[9]     —— [1] Adam Goodheart, Lincoln, Looking For His Legacy Today, National Geographic, (April 2015). [2] United States v. Nesbeth, 15 –CR-18 (FB) (E. Dist. N.Y. May 24, 2016). Benjamin Weiser of The New York Times covered the story on Wednesday, U.S. Judge’s Striking Move in Felony Drug Case: Probation, Not Prison (May 25, 2016). [3] Id. at 6. [4] ABA STANDARDS FOR CRIMINAL JUSTICE, COLLATERAL SANCTIONS AND DISCRETIONARY DISQUALIFICATIONS OF CONVICTED PERSONS. [5] UNIFORM COLLATERAL CONSEQUENCES OF CONVICTION ACT (2010). [6] Id. at 11, n.32, citing How to Get Around A Criminal Conviction, N.Y. TIMES, AT at 22(October 19, 2015). [7] Id. at 19. [8] Id. at 33. [9] Id. at 40 -41. Read more

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

Federal sentences and collateral consequences

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 also United 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

Long waits for expungement frustrate public safety purposes

Recently, in commenting on a new expungement scheme enacted by the Louisiana legislature, we noted the disconnect between the stated reentry-related purposes of the law and its lengthy eligibility waiting periods.  If people have to log many years of law-abiding conduct before they can even apply for this relief, it is not likely to be of much help to people returning home from prison.  Were Louisiana lawmakers unaware that the new expungement law would be unlikely to serve its stated purposes, or did they have some reason for advertising the new law in terms they knew were inapt. The preamble to the new Louisiana law says it is intended “to break the cycle of criminal recidivism, increase public safety, and assist the growing population of criminal offenders reentering the community to establish a self-sustaining life through opportunities in employment.”  But a felony offender is ineligible to apply for expungement until ten years after completion of sentence, long after recidivism has ceased to be a statistical risk.  In other words, the new law is not likely to do much if anything to “break the cycle of recidivism” or help people “reentering the community” (presumably from prison).  Even misdemeanants have to wait five years before they are eligible. The only people whose records can be expunged immediately are those who were never convicted to begin with. Wouldn’t people returning to the community from prison be more likely to benefit from supportive social services, rehabilitative programming, and assistance with obtaining transitional jobs and housing?  It is possible that the legislators expected the availability of expungement at some future time to provide an incentive to stay on the straight and narrow — but the reference to employment opportunities upon “reentering the community” suggests they had something more immediate in mind.   Relief after a long period of law-abiding conduct also serves a useful purpose to recognize a person’s full rehabilitation, but it does nothing to overcome obstacles faced by people upon their release from prison. The formulaic recitation of public safety-related purposes to justify providing relief from collateral consequences is not unique to Louisiana, and neither is the apparent contradiction with those purposes presented by extended eligibility periods.  New broad expungement schemes in Indiana, Minnesota and Arkansas also make felony offenders wait years without another run-in with the law before they can apply for relief.  Any notion that expungement of conviction records will facilitate reentry or discourage reoffending is either mistaken or disingenuous.   Expungement of arrest records is another matter, though concepts of “reentry” and “recidivism” don’t strictly apply where a person is not convicted. So this raises three questions:  1) why can’t we enact relief from collateral consequences at a time when it will in fact facilitate reentry and impact public safety; 2) why aren’t we doing more to avoid conviction in the first place; and 3) why are legislators and other government officials so hesitant to justify restoration of rights in terms of fairness and/or reward? The answer to Question #1 is that only a few states have enacted laws authorizing relief from collateral consequences as early as sentencing, when it could be of genuine help with reentry.  New York has had such a law for years, for first offenders sentenced to probation. Vermont, Colorado and New Jersey now also have laws authorizing the sentencing court to dispense with mandatory collateral consequences, and bills that would accomplish this have been introduced in several other states.  Relief at sentencing is a feature of both the Uniform Collateral Consequences of Conviction Act and the Model Penal Code: Sentencing, so perhaps this will be the wave of the future.  Note, however, that not a single state provides record-closing relief to convicted persons prior to completion of sentence, so advocates would do well to consider more transparent forms of relief during the period covered by the sentence. Question #2 gets a more hopeful answer:  more than half the states have opportunities for diversion and deferred adjudication followed by expungement or sealing.  This means that people charged with minor offenses can avoid a conviction record if they successfully completion of probation.  But again, this is not a “reentry” remedy strictly speaking since by definition the person never leaves the community.  And, in those jurisdictions that condition eligibility on a guilty plea, they may be subject to collateral consequences during the period of probation.  The new Model Penal Code: Sentencing has provisions implementing both diversion and deferred adjudication that do not require a formal plea, and whose specific goal is to enable people to avoid incurring collateral consequences. Since there is never a conviction, the person may answer honestly that they have never been convicted.  These provisions originated in the 1970s when reformers were interested in encouraging rehabilitation through sentencing, as we perhaps are again today. (I would note it is high time that the federal government expanded the only authority it now has for deferred adjudication, 18 USC 3706, from drug possession to any minor offense.) Question #3 is rhetorical.   Read more

Good news, bad news: New York’s drug law reform and collateral consequences

The Vera Institute has issued a first-rate assessment of the effect of the Rockefeller drug law reforms in New York City.  See End of an Era?  The Impact of Drug Law Reform in New York City.   The report found that as a result of the reforms far more people were diverted out of the justice system and into treatment, thus avoiding conviction and the attendant collateral consequences.  On the other hand, for those not diverted, the report found that the repeal of mandatory minimums led prosecutors to look for other ways to leverage plea bargains, leading to more felony convictions and more severe collateral consequences than under the old laws.  Sentencing reformers in other jurisdictions should take note. Vera researchers found that drug law reform led to a 35 percent increase in the rate of diversion among eligible defendants, though its application varied significantly among the city’s five boroughs.  The report also found that while judges now have authority to order diversion over the objections of the prosecutor, they rarely do so.  Diversion delayed or prevented further involvement in the justice system, leading to a significant reduction in recidivism rates: 36 percent of a sample of defendants who received treatment following the reforms were re-arrested within two years, compared to 54 percent of defendants who were sentenced to prison, jail, probation, or time served before the laws changed.   Racial disparities were cut in half as well, though disparity remains. Researchers found that the repeal of mandatory minimums had a darker side as well, in encouraging more severe treatment of those who were not diverted, in both charging and plea bargaining: Defendants arrested in 2010 for a B felony drug offense—the most common charge by far—were much more likely to be indicted and convicted of that crime when compared to cases originating from 2008 arrests. In 2008, prosecutors were more likely to offer defendants arrested for the same crime a lesser charge, possibly in an effort to persuade them to plead guilty and avoid a mandatory minimum sentence. In the samples of matched cases analyzed as part of this study, the number of people convicted of a B felony drug crime after the reforms were in place increased by a factor of 2.6, a change that is statistically significant. The report concludes that “[t]his trend raises concerns because of the effect that having such a serious criminal record may have, for example, on housing or employment opportunities or for future sentencing decisions, if the person is re-arrested.” New York’s experience implementing an admirable sentencing reform agenda offers a cautionary note for reformers everywhere: it is not enough to repeal mandatory minimums and divert more people out of the criminal justice system.  It is essential also to address the impact of collateral consequences on those who remain in the system. Read more