Collateral consequences of criminal charges
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Collateral consequences of criminal charges, known as the "Four C's" in legal parlance [1], collateral consequences of criminal charges are the results of arrest, prosecution or conviction that are not part of the sentence imposed.
This includes any unintended or unforeseen impact of the charge, even in the absence of a conviction or a trial. Generally, this is related to the distinction between direct and collateral consequences of action or inaction.
[edit] Introduction
The criminal justice system applies criminal law to defendants accused of committing a crime. If found guilty, or if the defendant pleads guilty, the sentencing authority (usually a judge) imposes a sentence.
This sentence can take many forms, including (but not limited to) revocation of privileges, such as driving; house arrest; community service; and imprisonment. Collectively, these consequences of the crime are referred to as direct consequences - those intended by the judge, and frequently mandated at least in part by an applicable law or statute.
However, beyond the terms of the sentence, a defendant can experience far-reaching and unexpected effects. For example, a person convicted of a felony may experience (in addition to social stigma) disenfranchisement; loss of federal loans for education (for drug charges); eviction from public housing, etc. While merely a sampling of the potential effects, consequences of a criminal conviction that are not intended by the judge, or that are beyond the terms of a sentence itself, are referred to as collateral consequences. Because such ramifications may stem from merely being charged with a crime, rather than necessarily being convicted, "collateral consequences of criminal charges" is preferred over shorter but more ambiguous names.
To illustrate, while an arrest will not necessarily lead to a state sanction such as imprisonment, the arrest itself may have serious ramifications, such as a loss of a job due to inability to pay bail, loss of public housing, and social stigma.
For purposes of illustration, the Public Defender Service of the District of Columbia assembled a document in 2004 outlining some collateral consequences.[2]
[edit] Efforts to include collateral consequences in sentencing
Some argue that if a defendant is punished beyond the sentence (that is, collateral consequences do occur), the punishment is then more severe than that intended or warranted. In the worst case, some claim, this may violate constitutional protections. Others note that any reasonable person would expect social stigma and disapproval, lessened interest by employers, decreased trust by the community and other consequences for the commission of criminal conduct.
The Supreme Court of the United States articulated this concern as early as 1984. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court explored ineffective assistance of counsel with respect to collateral consequences of criminal convictions.[3] In evaluating competence, the Court explained, judges should look at all relevant circumstances and evidence of appropriate measures of professional behavior, such as the ABA Standards for Criminal Justice ("ABA Standards"). The ABA Standards require defense lawyers to consider collateral consequences of conviction. Judges, accordingly, should monitor the performance of counsel. States chose to apply this rule in varying ways.
Strickland encouraged but did not mandate consideration of collateral consequences. Some claim that structural incentives exist for lawyers to not elicit information relevant to collateral consequences because doing so may prolong a case; others note that no attorney or judge could predict any and all collateral consequences of a criminal conviction. Since Strickland did not require an analysis of collateral consequences, they generally are not regarded as cause to overturn criminal convictions.
Some states, however, have made more concerted efforts. For example, in New York the consideration of collateral consequences is merely discretionary, while the elucidation of direct consequences is required (see People v. Ford, 86 N.Y.2d 397 (N.Y. 1995)[4]), In May of 2005, Chief Judge Judith S. Kaye of the New York State Court of Appeals, organized the Partners in Justice Colloquium to address this issue.[5] Judge Kaye formed a working group which, in partnership with the Lawyering in the Digital Age Clinic at the Columbia University Law School, created a site that, for the first time, collects academic works, court opinions, and professionals' resources (by virtue of a message board and database) in one place.[6]
