Collateral consequences: Keeping it all straight
José Padilla had been a lawful permanent resident of the United States for more than 40 years when he was assured by his attorney in 2001 that pleading guilty to a drug offense would not affect his immigration status. Almost immediately, however, the government began deportation proceedings against him. Nine years later in Padilla v. Kentucky, the Supreme Court held that “because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient.” Since then, the collateral consequences of criminal convictions have been front-of-mind for lawyers and judges.
One in four Americans now has some sort of criminal record, and virtually any defendant in a criminal case could be affected by collateral consequences. Legal professionals, including defense attorneys, corporate counsel and judges, need to be aware of collateral consequences in a variety of situations.
Margaret Love represents clients seeking executive clemency and restoration of rights, and has written extensively on the presidential pardon power and collateral consequences. She points out that, “Legal professionals need to understand the many ways in which collateral consequences can affect their clients, as employers and business owners and government contractors as well as criminal defendants. Public policy advocates need to understand how collateral consequences can adversely affect whole families and communities. Government officials need to understand that individuals who are subject to collateral consequences must have an opportunity to make a fresh start after a certain period of time has passed.”
In fact, collateral consequences can vary widely and include travel restrictions, loss of employment opportunities, business and professional licensing restrictions and residency restrictions, among others. But with so many applicable cases, how can legal professionals keep track of all possible consequences?
Conceived in 2011 by the NACDL and West as the first systematic and comprehensive resource for lawyers and judges on the collateral consequences of conviction, Collateral Consequences of Criminal Convictions: Law, Policy and Practice includes the following:
- an introduction to the topic with historical background
- an overview of types of collateral consequences
- an analysis of how collateral consequences arise in the legal process
- a review of recent trends in criminal records law
- state-by-state summaries of relief and restoration mechanisms and comparison charts for reference
Love, co-author of the book, notes that in most states there are more than a thousand collateral consequences on the books, many of which are mandatory and permanent. “It is fair to say that there are very few regulated activities where conviction is not taken into account, and background checking has become ubiquitous in the private sector as well.”
For example, she says, “Landlords won’t rent to people with a criminal record, banks and insurance companies won’t do business with them, and even volunteer organizations refuse their services. Clients of mine have been refused permission to coach their children’s sports teams or accompany them on school field trips.”
NACDL executive director Norman L. Reimer emphasizes the importance of this resource and recognizes the impact that the decision of Padilla v. Kentucky can have on the legal system: “We commend this volume to the profession and the public in the hope and expectation that a better understanding of the enduring burdens imposed by a criminal conviction will lead to a fairer and more effective justice system.”
To find Collateral Consequences of Criminal Convictions: Law, Policy and Practice, visit Legal Solutions by Thomson Reuters.
