Important Decision of Felony Conviction Collateral Consequences for Sentencing and Systemic Consideration (6/3/16)

Judge Frederick Block of DENY (Court web here; Wikipedia here) has issue a very thoughtful opinion in a nontax case that holds, in determining an appropriate sentence under 18 USC 3553(a), here, the Court may consider the collateral consequences that attend a felony conviction.  See United States v. Nesbeth, 2016 U.S. Dist. LEXIS 68731 (ED NY 2016), here.  Some of the collateral consequences effectively treat the felon as if she were no longer a citizen -- i.e., she may not vote or participate in jury duty.  There are many other collateral consequences of felony conviction which Judge Block notes in his opinion and which are noted in the authorities cited in his decision.  Moreover, Judge Block reminds all involved in the process -- government and defense counsel, the Probation Department and others that as to their responsibilities with respect to those collateral consequences:

I review certain portions of the opinion that I think are worthy of note:

Collateral Consequences

Being a history major, I love it when opinions dig into the history of the issues being discussed.  Here is Judge Block's introduction and short version of the history of collateral consequences (some footnotes omitted):

I am writing this opinion because from my research and experience over two decades as a district judge, sufficient attention has not been paid at sentencing by me and lawyers—both prosecutors and defense counsel—as well as by the Probation Department in rendering its pre-sentence reports, to the collateral consequences facing a convicted defendant. And I believe that judges should consider such consequences in rendering a lawful sentence. 

There is a broad range of collateral consequences that serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences. Many—under both federal and state law—attach automatically upon a defendant's conviction. 

The effects of these collateral consequences can be devastating. As Professor Michelle Alexander has explained, "[m]yriad laws, rules, and regulations operate to discriminate against ex-offenders and effectively prevent their reintegration into the mainstream society and economy. These restrictions amount to a form of 'civi[l] death' and send the unequivocal message that 'they' are no longer part of 'us.'" n2
   n2 Michelle Alexander, The New Jim Crow 142 (2010). 

* * * *
I. The History of Collateral Consequences 

   A. From Past to Present 

The notion of "civil death"—or "the loss of rights . . . by a person who has been outlawed or convicted of a serious crime" n3 —appeared in American penal systems in the colonial era, derived from the heritage of English common law. n4 As explained by the New York Court of Appeals in 1888, a convicted felon in old England was
   n3 Civil Death, Black's Law Dictionary (10th ed. 2014).
   n4 The Collateral Consequences of a Criminal Conviction, 23 Vand. L. Rev. 929, 942-949 (1970); Margaret Colgate Love, Jenny Roberts & Cecelia Klingele, Collateral Consequences of Criminal Convictions: Law, Policy and Practice 8 (2013 ed.). 

placed in a state of attainder. There were three principal incidents consequent [4]  upon an attainder for treason or felony, forfeiture, corruption of blood, and an extinction of civil rights, more or less complete, which was denominated civil death. Forfeiture was a part of the punishment of the crime . . . by which the goods and chattels, lands and tenements of the attainted felon were forfeited to the king . . . . The blood of the attainted person was deemed to be corrupt, so that neither could he transmit his estate to his heirs, nor could they take by descent from the ancestor . . . . The incident of civil death attended every attainder of treason or felony, whereby, in the language of Lord Coke, the attainted person "is disabled to bring any action, for he is extra legem positus, and is accounted in law civiliter mortuus," or, as stated by Chitty, "he is disqualified from being a witness, can bring no action, nor perform any legal function; he is in short regarded as dead in law."

In the United States, civil death has never been imposed by common law; it has always been a creature of statute. 

The concept of civil death persisted into the twentieth century as an "integral part of criminal punishment." n7 Some commentators express that the continuation of civil death, "[e]ven watered down and euphemistically denominated 'civil disabilities,' . . . functioned after the Civil War to perpetuate the social exclusion and political disenfranchisement of African-Americans." n8 These compelling critiques are not limited to traditional civil death and persist with great force to the modern imposition of collateral consequences to convicted felons.
   n7 Love, et al., supra note 4, at 8.
   n8 Id. (citing Douglas Blackmon, Slavery by Another Name: The Reenslavement of Black People in America from the Civil War to World War II (2008) and William Cohen, at Freedom's Edge: Black Mobility and the Southern White Quest for Racial Control (1991)). 

The mid- to late-twentieth century saw the rise and fall of efforts at reforming the harshness of collateral consequences. In 1950, Congress passed the Federal Youth Corrections Act, which was designed to "give youthful criminals 'an incentive to reform' by 'removing the infamy of [their] social standing.'" Specifically, the Act made federal offenders between the ages of eighteen and twenty-six eligible "to have their convictions 'set aside' if the court released them early from probation." The Model Penal Code disseminated by the American Law Institute in 1962 adopted a section under which a "sentencing court would be empowered, after an offender had fully satisfied the sentence, to enter an order relieving 'any disqualification or disability imposed by law because of the conviction.'" In the years following, several states enacted measures "to dismantle the statutory apparatus of 'civil death.'"  

This reform movement reached its peak in 1984, when the House Committee on the Judiciary reported "a sentencing reform bill that contained a chapter titled 'Restriction on Imposition of Civil Disabilities,'" which "prohibited unreasonable restrictions on eligibility for federal benefits and programs, and state or federal employment, based on a federal conviction." But that bill was never passed, and the movement fell from the peak over a cliff. In lieu of the bill reported out of the House committee, Congress passed the Sentencing Reform Act of 1984, which "emphasized deterrence and incapacitation," and repealed the Youth Corrections Act.  

Today, the collateral consequences of a felony conviction form a new civil death. n16 Convicted felons now suffer restrictions in broad ranging aspects of life that touch upon economic, political, and social rights. n17 In some ways, "modern civil death is harsher and more severe" than traditional civil death because there are now more public benefits to lose, and more professions in which a license or permit or ability to obtain a government contract is a necessity. n18 Professor Alexander paints a chilling image of the modern civil death:
   n16 Love, et al., supra note 4, at 15-16 ("The term 'collateral consequences' is of fairly recent origin in the academic literature and case law, and until recently was used interchangeably with terms such as 'civil disabilities,' 'adverse legal consequences,' and 'indirect consequences.' A settled legal definition remains elusive, and the term itself has become somewhat controversial . .   . . ['Collateral consequences' has become a part of the lexicon, and we use it in this book to describe the wide range of status-related penalties that are permitted or required by law because of a conviction even if not included in the court's judgment.").
   n17 See Nora V. Demleitner, Preventing Internal Exile: The Need for Restrictions on Collateral Sentencing Consequences, 11 Stan L. & Pol'y Rev. 153, 154 (1999); see also Labels Like 'Felon' Are an Unfair Life Sentence, N.Y. Times, at SR 10 (May 8, 2016) (discussing the stigmatizing effect of labels such as "felon," "ex-convict," and "ex-offender").
   n18 Chin, supra note 5, at 1802. 

Today a criminal freed from prison has scarcely more rights, and arguably less respect, than a freed slave or a black person living "free" in Mississippi at the height of Jim Crow. Those released from prison on parole can be stopped and searched by the police for any reason . . . and returned to prison for the most minor of infractions, such as failing to attend a meeting with a parole officer. . . . The "whites only" signs may be gone, but new signs have gone up—notices placed in job applications, rental agreements, loan applications, forms for welfare benefits, school applications, and petitions for licenses, informing the general public that "felons" are not wanted here. A criminal record today authorizes precisely the forms of discrimination we supposedly left behind—discrimination in employment, housing, education, public benefits, and jury service. Those labeled criminals can even be denied the right to vote.

   B. Modern Reform Efforts 

The ebb and flow of efforts at reform are tiding back towards dismantlement of collateral consequences and civil death. President Barack Obama, for one, has taken steps by executive order to help felons rehabilitate and reintegrate into society. For example, he has ordered federal agencies to "ban the box," i.e., not ask prospective employees about their criminal histories early in the application process. Additionally, the President has voiced his support for the Sentencing Reform and Corrections Act of 2015, which has received bipartisan support in the Senate. If passed, this bill would, among other things, [10]  require the Bureau of Prisons to implement recidivism-reduction programming, expand safety-valve eligibility, and permit a sentencing judge to avoid mandatory minimums in certain circumstances.  

Other examples include the Department of Justice's National Institute of Justice's funding of a comprehensive study on the collateral consequences of criminal convictions. The study—which was conducted by the American Bar Association's Criminal Justice Section—has catalogued tens of thousands of statutes and regulations that impose collateral consequences at both the federal and state levels. Based on the results of this study, former Attorney General Eric Holder implored the states to "determine whether [the collateral consequences] that impose burdens on individuals convicted of crimes without increasing public safety should be eliminated."  

My former colleague in the Eastern District of New York, Judge John Gleeson, recognized the devastating effects the collateral consequences of conviction had on a defendant who was unable to procure employment due to an offense she had committed seventeen years prior. He explained that he had sentenced the defendant "to five years of probation supervision, not to a lifetime of unemployment." n25 Judge Gleeson determined that district courts in the Second Circuit "have ancillary jurisdiction over applications for orders expunging convictions," and expunged the defendant's conviction.  n26 If Judge Gleeson's opinion is affirmed on appeal, Ms. Nesbeth might—if she could show the "extreme circumstances" necessary for expungement—be a candidate for this form of relief at some future time. n27
   n25 Doe v. United States, 110 F. Supp. 3d 448, 457 (E.D.N.Y. 2015) (Gleeson, J.), appeal docketed, No. 15-1967 (2d. Cir. June 19, 2015).
   n26 Id. at 454 & n.16 (citing United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir. 1977)). On appeal, the Government argues that the Second Circuit should reconsider Schnitzer—which grants district court's ancillary jurisdiction to expunge convictions on equitable grounds—in light of the Supreme Court's decision in Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994), in which the Supreme Court limited district courts' ancillary jurisdiction to two circumstances, "(i) to permit a single court to dispose of 'factually interdependent' claims and (ii) to enable a court to function successfully by 'manag[ing] its proceedings, vindicat[ing] its authority, and effectuat[ing] its decrees.'" Brief for Appellant at 19-21, Doe v. United States, No. 15-1967 (2d Cir. Sept. 18, 2015) (quoting Kokkonen, 511 U.S. at 379-80).
   n27 In the event Ms. Nesbeth cannot show such extreme circumstances, other future relief may also be possible. In March 2016, Judge Gleeson again exercised ancillary jurisdiction to consider an application for expungement. While he found that the defendant's "situation d[id] not amount to the 'extreme circumstances' that merit expungement," he "reviewed her case in painstaking detail" and certified that she had been rehabilitated. Doe v. United States,    F. Supp. 3d   , 2016 WL 929316, at *1 (E.D.N.Y. Mar. 7, 2016) (Gleeson, J.). He accordingly issued a "federal certificate of rehabilitation" to "memorialize[] [his] conclusion so that future employers may benefit from it." Id. at *13. 

In recent years, the organized bar has again made substantial efforts to alleviate the detrimental effects of collateral consequences. In 2003, the ABA House of Delegates approved Standards on Collateral Sanctions and Discretionary Disqualification of Convicted Persons, which, among other things, prohibited the imposition of a collateral sanction unless "the legislature cannot reasonably contemplate any circumstances in which imposing the sanction would not be justified," and prohibiting "discretionary disqualification" from "benefits or opportunities, including housing, employment, insurance," etc. n29  The Uniform Law Commission released the 2010 Uniform Collateral Consequences of Conviction Act ("UCCCA"), which includes certain procedural protections, such as notifying a defendant who pleads guilty of the various consequences he or she will suffer by so pleading. n30 Vermont has enacted the UCCCA, and bills proposing its adoption are currently pending in New York, Pennsylvania, and Wisconsin. n31
   n29 See ABA Standards for Criminal Justice, Collateral Sanctions and Discretionary Disqualification of Convicted Persons, §§ 19-2.2, 3.1.
   n30 See Uniform Collateral Consequences of Conviction Act § 5 (2010).
   n31 Legislative Enactment Status: Collateral Consequences of Conviction Act, Uniform Law Commission, http://www.uniformlaws.org/LegislativeMap.aspx? title=Collateral%20Consequences%20of%20Conviction%20Act. 

Notwithstanding these various efforts at reform, felony convictions continue to expose individuals to a wide range of collateral consequences imposed by law that affect virtually every aspect of their lives.

In Section II, titled The Depth and Breadth of Post-Conviction Statutory and Regulatory Collateral Consequences, Judge Block reviews the hodge-podge of collateral consequences, noting that

Remarkably, there are nationwide nearly 50,000 federal and state statutes and regulations that impose penalties, disabilities, or disadvantages on convicted felons.  

Judge Blog then discusses some of the scope of those penalties, disabilities or disadvantages.  (See the pdf opinion, pp. 11-15.)

Recognizing that he cannot rationalize and make a coherent and holistic whole of these penalties, disabilities  or disadvantages, Judge Block deals with what he can -- the sentencing that is before him and the reminder to all involved in the criminal process that these need to be considered.

Sentencing

Judge Block concludes that, although the authorities are not uniform, the Second Circuit authority seemed to support consideration of the collateral consequences.  Considering all other factors including the Guidelines range of 33-41 months, Judge Block imposed one year probation, with some conditions.  This is quite a Booker departure.  Judge Block's opinion should give criminal defense new ammunition to argue for a Booker downward variance.

Finally, Judge Block reminded everyone in the system, particularly counsel (both defense and Government) and the Probation Department that they need to be aware of the collateral consequences. This portion of the decision is so important, particularly to criminal defense attorneys (who often read this blog), that I quote significant portions:

VI. The Responsibilities of Counsel and the Probation Department 

In Padilla v. Kentucky, 559 U.S. 356 (2010), the Supreme Court held that the failure of defense counsel to advise his client "that a conviction may have immigration consequences" violates the defendant's Sixth Amendment right to the effective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). Padilla, 559 U.S. at 388. In so doing, it recognized that it had "never applied a distinction between direct and collateral consequences to define the scope of constitutionally 'reasonable professional assistance' required under Strickland." Id. at 365 (quoting Strickland, 466 U.S. at 689). However, it did not have to decide [46]  "[w]hether that distinction is appropriate," since it ruled that "[d]eportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence." Id. at 365-66. Consequently, "[t]he collateral versus direct distinction" was "ill suited to evaluating a Strickland claim concerning the specific risk of deportation." Id. at 366. 

It is an open question, therefore, under what circumstances, if any, the failure of counsel to advise a defendant prior to a plea of at least the critical non-deportaton collateral consequences he or she faces, might rise to the level of an ineffective-assistance claim. But arguably the Supreme Court in Padilla has left the door open. Moreover, once again, as the Tenth Circuit noted in Morgan, the high court has also yet to rule whether, regardless of Sixth Amendment concerns, collateral consequences may be part of the § 3553(a) mix. 2015 WL 6773933, at *20. 

Thus, it is undecided whether counsel's failure to advise his client of any significant collateral consequences at the pleading stage or to address the issue at the sentencing phase, could ever rise to the level of ineffective assistance under the constitutional standard articulated in Strickland. 

What is established, however, is defense counsel's "overarching duty to advocate the defendant's cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution." Strickland, 466 U.S. at 688. Thus, counsel has at least a professional responsibility to timely inform both the court, as well as his client, of the significant collateral consequences facing the defendant as a result of a conviction. 

Prosecutors also have responsibilities. Pursuant to 28 U.S.C. §530B(a), "[a]n attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney's duties, to the same extent and in the same manner as other attorneys in that State." 

Rule 3.8 of New York's Rules of Professional Conduct provide for "Special Responsibilities of Prosecutors," which mostly detail the rules for disclosing relevant information and evidence and dealing with defendants who lack counsel. But comment 1 to the rule provides a broad general statement that, "[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate." To the extent collateral consequences are part of the § 3553(a) mix, prosecutors have an obligation to be candid with the court at sentencing about the applicable collateral consequences and how much weight they should be accorded. 

The Probation Department also has obligations. Commendably, the addendum it provided at the Court's behest advising of the federal collateral consequences Ms. Nesbeth faces proved very useful. The Probation Department should include a collateral-consequences section in all future pre-sentence reports. The Federal Rules of Criminal Procedure authorize the Court to make such a request: Rule 32(d)(1) provides that "the presentence report must . . . (D) identify any factor relevant to: (I) the appropriate kind of sentence, or (ii) the appropriate sentence within the applicable sentencing range; and (E) identify any basis for departing from the applicable sentencing range," and Rule 32(d)(2) requires that the pre-sentence report also include "the defendant's history and characteristics" and "any other information that the court requires, including information relevant to the factors under 18 U.S.C. § 3553(a)." 

Thus, it is the obligation of both the defense lawyer and the prosecutor, as well as the Probation Department in the preparation of its PSR, to assess and apprise the court, prior to sentencing, of the likely collateral consequences facing a convicted defendant. 

Publicly available resources make this obligation reasonably easy to satisfy. The ABA's collateral consequences database, accessible at abacollateralconsequences.org, is useful due to both its breadth—it contains information on 47,589 statutes and regulations—and the user's ability to narrow the search to collateral consequences relevant to particular cases. One can select narrowing filters based on the categories of the collateral consequences (e.g., employment, education, housing, etc.), whether the consequences are mandatory, and the nature of the defendant's offense (e.g., controlled-substances offenses, weapons offenses, etc.). 

The National Association of Criminal Defense Lawyers has published Collateral Consequences of Criminal Convictions: Law, Policy, and Practice, a comprehensive treatise—cited multiple times in this opinion—on the issues surrounding collateral consequences. n64 Additionally, a Department of Justice monograph provides details on various federal collateral consequences. n65
   n64 Margaret Colgate Love, Jenny Roberts & Cecelia Klingele, Collateral Consequences of Criminal Convictions: Law, Policy and Practice (2013 ed.). The NACDL provides valuable resources to the bar to support various aspects of representing criminal defendants. With respect to collateral consequences, it recommends that "Defense counsel should interview clients for detailed background information so that the effect of particular collateral consequences can be fully explained to and considered by the client before any final disposition." NACDL, Collateral Damage: America's Failure to Forgive or Forget in the War on Crime, at 62 (May 2014), available at https://www.nacdl.org/restoration/roadmapreport/ .
   n65 Department of Justice, Federal Statutes Imposing Collateral Consequences Upon Conviction, available at https://www.justice.gov/sites/default/files/pardon/legacy/2006/11/13/collateral_consequences.pdf . 

In the event counsel in a future case disagree as to the applicability or relevance of certain collateral consequences to a defendant's situation, a hearing may be appropriate to make a factual determination on the issue. Fed. R. Crim. P. 32(i)(2) ("The court may permit the parties to introduce evidence on the objections [to the PSR]."). 

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. 

Hopefully, this opinion will be of value to the bench and bar, and to all those who are committed to serving the ends of justice.

Finally, returning briefly to the history part of the collateral consequences.  Judge Block noted at a couple of points the racial connection dating back to post-Civil War in the South for some of the collateral consequences.   I just coincidentally happen to be reading David W. Blight's, Race and Reunion: The Civil War in American Memory (2002), here. I am not very far into the book yet, although it has already starting to note the systemic oppression of blacks in the South as the white South began to assert control over the recently freed blacks.  My understanding, though, is that, although I am not yet there in the book, some of the key collateral consequences (such as denial of the right to vote and denial of jury duty) had their origins as control mechanisms.  I hope that Blight will address that issue.  If he does, I will be better informed (rather than just an understanding), and I will report back.