Last updated on May 2nd, 2019
[Editor’s Note: In this episode of Law Talk, we mention an online tool used to track collateral consequences in the U.S. This tool is called the National Inventory of Collateral Consequences of Conviction, and is searchable by state. You can find it on the Justice Center’s website.]
Andrew Michael: Come on Facebook, I believe in you. Awesome, here we go. It’s Wednesday, it’s law talk time. We are going to be talking about collateral consequences today, which is a really interesting area of criminal law that not many people actually talk about. Like, I’ve been reading a lot up on it and it’s one of those things where everyone just sort of says like, yeah, people know about it but it’s not something that comes to the front of your mind whenever you think about criminal convictions.
Jessica Wildeus Right, well it sounds like a technical world, collateral consequences, what does that even mean, right?
Andrew Michael: Yeah, so you want to sort of give a basic overview of what are we actually going to be discussing today, like what are collateral consequences in relation to criminal convictions.
Jessica Wildeus That’s a really good question.
Andrew Michael: And a very broad question, which we’re trying to get into today.
Jessica Wildeus Yeah, it is. I think that that’s a question that even courts are still asking sometimes. Basically when you’re talking about collateral consequences you’re comparing them to direct consequences, which makes sense. There was a case that happened somewhat recently, Padilla versus Kentucky. That case essentially said when there are certain direct consequences that follow from a criminal conviction, a defense attorney has an affirmative duty to tell their client about it.
Andrew Michael: Yeah, and a direct consequence would be like you do a crime, therefore you get a fine, or you get put in jail. Things that are directly stated in the code for that crime.
Jessica Wildeus Yes, so, and right, and the case specifically says something that immediately and directly follows from the conviction, so that case is really specific to immigration. A direct consequence of a lot of criminal convictions, as we know, is that your immigration status can change, or as you may not know.
Andrew Michael: Which is commonly related to being deported.
Jessica Wildeus Absolutely.
Andrew Michael: Because, that’s basically what you’re talking about is like deportation was a collateral consequence, but because of this case they made it where like the attorney and the judge and everyone needs to make sure the person knows it’s a direct consequence.
Jessica Wildeus Well, the defense attorney needs to make sure that-
Andrew Michael: Yes, sorry, the defense attorney, yeah.
Jessica Wildeus Yeah. Right, so that’s when we think about what a defense attorney’s duty is we think of direct consequences, but there’s all these other things that are collateral consequences that might not be as direct and immediate as a change in immigration status. You might not be forced to leave the country, but it still has a pretty substantial impact on your life. It might not be something that you would naturally think flows from a criminal conviction. Like, there’s all sorts of stuff that we know happens if you get convicted of a crime, like you go to jail, you may have to pay a fine, stuff like that. You go on probation. But, there’s all sorts of other stuff that happens as more of an indirect result of a criminal conviction, and that’s what we think of as collateral consequences.
Andrew Michael: Okay. Actually, when I was Googling earlier I found this really interesting way of saying it. It was legal and regulatory sanctions that limit or prohibit various things.
Jessica Wildeus A lawyer definitely came up with that.
Andrew Michael: Oh, totally. Yeah, well and it makes sense too because it’s these sanctions that though they’re not directly stated in the code, they’re things that, they’re penalties for breaking the law. For example, I know we were talking about this on Monday, and it was like yeah, if you have a gambling conviction you can’t start a horse racing business or something. Like it-
Jessica Wildeus Which makes sense.
Andrew Michael: Yeah, I mean it’s these common sense, or a lot of them are these common sense sort of things, but at the same time there are also a lot of other ones that can significantly negatively impact someones life, because of a conviction or even an arrest in some cases.
Jessica Wildeus Absolutely.
Andrew Michael: Yeah, so do you want to sort of talk about the more common collateral consequences? We’ve talked about deportation as the big one, but there are a bunch of other ones that we can go into.
Jessica Wildeus Absolutely. Some really common ones are conviction of a felony you lose the right to own a gun, you can lose the right to vote. Some of these rights can be reinstated, but it’s a consequence of your conviction. There’s also stuff, you know, that is a little bit less predictable, like if certain crimes you can, your landlord can break your lease if you’re convicted of certain violent crimes. Or, if you’re in public housing you can lose your housing, or you can lose the right to certain benefits.
Jessica Wildeus There was something I ran into recently where someone, I heard of something that happened where someone was released from prison and his retirement benefits, his social security, were impact. The amount that he was getting because of the amount of time he spent in prison. That’s kind of stuff that gets really tricky and you might not think of, that’s definitely something that doesn’t logically flow from, you know, I’m older, I’m going to prison. I’m still going to get retirement at the end of it but how much type of thing.
Andrew Michael: Yeah, and it effects the other end of the age scale as well, like you have to report crimes to your university for example if you’re in college. It can effect your FASFA loans. Pretty much any type of government funding you basically have to tell them, hey I was, I committed a crime or I was convicted of a crime. It has a chance to effect anything stemming off of that.
Jessica Wildeus Absolutely. I mean, that’s one of the more common ones there is with employment. You know, if you’re convicted of a felony your employer has a right to do the background check, you should be reporting that, so that’s something that’s more commonly known. But something else, and I was reading up on this a little bit, is crimes of moral turpitude, which is another law term, but if you get convicted of something like lying on a document or cheating or evading taxes, there’s certain other jobs that you can’t hold that would require honesty. Like, you lose the right to hold certain jobs that you’re in charge of peoples money or have certain professional licenses.
Andrew Michael: Or even just government jobs.
Jessica Wildeus Yeah.
Andrew Michael: Yeah, we’ve talked about crimes of, I think it’s crimes against moral turpitude, I can’t remember the exact term is. It’s basically like those are crimes that make it look like you’re not a good citizen, which is a very broad way of defining it, but that’s essentially what it is. It’s usually in relation in our office to immigration things. Like, you can’t apply for citizenship if you have committed a crime against moral turpitude. Any of the collateral consequences we’re talking about right now could make someone’s citizenship application or green card application not go through.
Jessica Wildeus Absolutely, right. For those cases, those are situations where under existing case law a defense attorney has, it’s our job to inform a client that this is the consequence of, and Padilla specifically deals with plea deals. That’s a really common, I think the vast majority of cases nowadays in the criminal justice system a defendant will take a plea deal, or will plea guilty or not guilty. It’s a huge part of what goes into a criminal conviction is before your client takes a plea deal you have to tell them what the consequences are in terms of immigration. But, for some of this other stuff that’s a little bit more far flung, how are you supposed to advise a client on whether they’re going to be able to get a professional accounting license down the road if they have a domestic abuse charge type of thing, so.
Andrew Michael: Yeah, and well I like that you bring that up because what’s the name of the resource tool we were talking about on Monday? Because, so the American Bar Association put out a tool, it’s like a searchable list of all collateral consequences in the United States. I know we were talking about like in Virginia there’s over, I think it’s like 950 or something.
Jessica Wildeus There’s like 96 pages, yeah, I looked at that.
Andrew Michael: Yeah, individual collateral consequences that can effect a wide range of criminal convictions. For example, just doing your job. There are certain professional licenses that you will lose if you have certain criminal convictions and stuff. Like you said, it can sometimes be hard for both the person being prosecuted as well the defense attorney’s to know what specifically the outcome of this crime, or this charge, will be for the person. Just because there’s such a wide array of consequences because of it.
Jessica Wildeus Absolutely, it’s definitely tricky. I can’t remember the name of the tool but, like you said, sometimes it kind of seemed proportional. Like, I was looking up some of the stranger ones and if you break some of the hunting regulation, you can lose your right to have a hunting license, stuff like that. Then, some of them are a little bit more narrow, like you can lose the right to operate a, what are they called, a child care facility if you, I think that one is another crime of moral turpitude.
Andrew Michael: A lot of these stem off of like drug related charges, too, just as a side effect of the war on drugs over the last couple of years. Where a lot of these regulatory agencies well, if you’ve had a drug crime, no matter how serious it was, you can lose your license and all this other kind of stuff.
Jessica Wildeus Mm-hmm (affirmative).
Andrew Michael: Which, like we mentioned earlier, it’s these unforeseen consequences of criminal conviction that can effect your livelihood, even if you’re out of jail or have done your time, all that kind of stuff.
Jessica Wildeus Absolutely. I think it’s great, like you mentioned that resource that’s been developed, that was from AVA funding to kind of have this compiled list of what these consequences could be. I think it’s searchable, you can kind of look, yeah.
Andrew Michael: Oh, it’s searchable by like criminal offense, by where you live, by a whole number of things. I’ll post the link to it both here and on our blog post later on.
Jessica Wildeus Which is awesome that resource is out there.
Andrew Michael: It’s also just interesting to read through, too.
Jessica Wildeus It is.
Andrew Michael: Like, there’s so many weird consequences based on super specific criminal convictions.
Jessica Wildeus If you think about the consequences in an immigration standpoint where there is a duty for the defense attorney to tell their client about it, but there’s not when it comes to collateral consequences. Then, it falls to like how are you supposed to be, if you do face a criminal conviction for something like a misdemeanor or a felony, how do you find out what the consequences are. How do you find out that you can’t have this accounting license down the road, or that you can’t operate a certain kind of business. Because if someone doesn’t have the job to tell you about it, how are you supposed to get that information when it’s hard even for lawyers to figure out the law? So, it’s good that there’s at least one resource out there that people can go to.
Andrew Michael: Yeah, and I know the thing that keeps coming up with this is, I think you said it was the eighth amendment?
Jessica Wildeus Sixth.
Andrew Michael: Oh, sixth amendment.
Jessica Wildeus Yeah, the-
Andrew Michael: With the ineffective assistance of council and all those kind of roles. Do you want to sort of talk about that, because we’ve sort of been talking around it where it’s like the defense has a duty to tell the client this is what will happen. Do you want to sort of speak to that sort of?
Jessica Wildeus Yeah.
Andrew Michael: Yeah.
Jessica Wildeus You have a constitutional right to an attorney, right, and you have a constitutional right in most cases to an attorney of your choice and to an attorney who does a good job. Your right, in Padilla your right, in immigration cases to be counseled on immigration consequences is a constitutional right. It comes from the sixth amendment, which is awesome. But, you also have the right, like the effective assistance of council. What is an effective assistance of council. Basically it means that your lawyer didn’t do a sufficient job in helping you with your case, that the outcome would have been different if someone else had done it. If like a competent attorney had helped you.
Andrew Michael: Yeah.
Jessica Wildeus In Padilla, it was basically ineffective assistance of council to not tell them the consequences, the direct consequence of a plea deal.
Andrew Michael: Which was the deportation sort of.
Jessica Wildeus Right, exactly, because it directly flowed from taking that plea deal that their immigration status would change. There are different kinds of ineffective assistance of council, but it basically means that your attorney is doing a poor job, that you were prejudiced by their performance.
Andrew Michael: It’s like a high, like you have to do a really, really bad job about it.
Jessica Wildeus You have to do a pretty bad job.
Andrew Michael: But, I know it comes up a lot in these discussions of collateral consequences because, sort of like on the ethics side, what is the extent you have to go to make sure your client is informed about every possible consequence. Because historically, and the reason why we have that database I’m going to post later, is it was really hard. There were a thousand consequences and only so much time in the day, especially for very specific cases, which is why it’s much easier now.
Jessica Wildeus Right, and the burden falls to defense attorney’s. Courts have a lot, they see a lot of cases, prosecutors have their own job, judges have their own job. The standard for ineffective assistance of council, like you said the bars pretty low, so there is no duty to inform clients of the collateral consequences. There’s just kind of this blanket low level duty to say, “Your immigration status may change for direct consequences.” A lot of defendants are kind of left in limbo. I mean, this is a good thing for, you can see it as a good thing for defense attorney’s, because we don’t have to know everything under the sun that might happen from your criminal conviction. You’re not going to get in legal trouble because of it.
Andrew Michael: But, from an ethical standpoint.
Jessica Wildeus That’s mainly where it comes, is like when you’re advocating for your client what information are you able to present to them when they’re facing certain charges.
Andrew Michael: Yeah. That’s something that like, especially here we’re going to make a good effort for, because again it’s so much easier with these databases, with all these online tools, to make sure everyone is fully informed about all of the consequences for their conviction or possible ones.
Jessica Wildeus Right, for sure.
Andrew Michael: I know something we haven’t really talked about yet is restoring these rights, which is like a whole separate issue unto itself. But, especially with being able to own a gun or for the November elections being able to vote, it’s something that definitely comes up a lot with the larger consequences. Do you want to just sort of speak a little bit to that, and how you can go about restoring your rights either in Virginia, or just talk about it in general.
Jessica Wildeus Yeah, I don’t want to go too much into depth because I’m not super familiar with the process, but it’s like you said, if you have a felony conviction you lose your right to vote in Virginia and you lose the right to own a gun. There’s other ways you can lose the right to own a gun, but for any case like that, those are also constitutional right, but we in Virginia say you forfeit them for certain convictions. You don’t go through the court system but you petition through the executive system, which is the governor and things like that. My understand is it’s quite a long process to get that done but it’s possible, and I know in Virginia especially there’s been a push to restore voting rights.
Andrew Michael: Yeah, that’s been a big hot topic issue because of all the prison activism and stuff that’s been going especially over the last year.
Jessica Wildeus I know there’s groups dedicated to stuff like that, there’s definitely resources out there for anyone who’s interested in having those rights restored, but those, yeah, those direct consequences are [inaudible 00:15:47].
Andrew Michael: I actually don’t even know if you would know this, but what is the process you would go through for collateral consequences or is there even one? Because, I was looking at it this morning and I couldn’t find a single resource for restoring your rights through collateral consequences, which just seemed like a weird open spot with a very big lack of literature on it.
Jessica Wildeus I think it is, and I think it’s coming more to the forefront in recent years that people are trying to be more, advocates are trying to be more informed on this issue, people are doing more research. Like you said, that database exists now, that’s all been very recent. I don’t know if there is a way to, because a lot of these things go through what we call administrative agencies, like the social security administration or housing.
Andrew Michael: Or, even like private things, like doing a background check for being hired and stuff like that.
Jessica Wildeus Right, and so for employment, you know, what leg do you have, it’s employment law and you’ve got to go through those avenues and employers in Virginia have the right to deny employment based on certain things. For housing that would be through whatever housing agency you’re going through, but a lot of these denials are pretty automatic and they’re encoded in the law, or they’re encoded in printed regulation, so there’s only so many things that you can do. You kind of just have to look for other avenues of how to manage things.
Andrew Michael: Yeah, I mean it’s one of those things where it has fingers in pretty much every area of government, where like-
Jessica Wildeus It’s very confusing.
Andrew Michael: Yeah. I know another thing I noticed recently was like a lot of them are split between automatic losses of rights and privileges as well as by the judges discretion and stuff like that. Which again, it’s very much a case-by-case basis, which is why you want to always do your homework when you’re doing this kind of stuff.
Jessica Wildeus Yeah, and that’s interesting that you bring up the discretionary or, you know, it’s the judges choice. That’s something that goes with sex offenses. Whatever it happens to be, whether it’s indecent exposure or something more serious it’s kind of at the judges, for certain ones, it’s on the judges discretion whether you get placed on that, what’s it called, the list, like the sexual offender list. You show up on the map in every neighborhood and that’s a collateral consequence that people don’t, you know that that happens but you don’t think of that as like this is now attached to your name forever. That’s something that you can petition to come off of, but that’s one of the discretionary consequences that judges kind of get to pick if they feel like this is an appropriate …
Andrew Michael: Punishment.
Jessica Wildeus Punishment. Or, not punishment, but something that goes along with, repercussion of this conviction, because they’re not supposed to technically be punishment that’s attached to the crime, it’s supposed to be … you know, if it’s something with housing, like you committed something that you’re now considered unsafe in this housing community, so a consequence of the conviction is that you’re no longer in this community. It’s not theoretically supposed to be part of the punishment.
Andrew Michael: Yeah, and like this sort of gray area is why it’s so hard to talk about it and why like, again, it’s very case-by-case, because there are so many collateral consequences that stem off of any number of crimes. Again, it’s very much at the discretion of the judge, of private businesses whether or not they’ll hire you. Like, all of this kind of stuff is a very gray area that, again, like I said, people don’t take into account as much when they’re being prosecuted. I know, I think on the federal sentencing guidelines there’s like a box on like well, what are the other consequences that can happen because of this conviction. But, there’s really no way for states to individually do that. Like, I’m not sure if it’s in Virginia or not, I don’t think it’s on our sentencing guidelines, but yeah.
Jessica Wildeus I don’t know off hand if it’s on the Virginia-
Andrew Michael: I was just looking through them last week for a article we’re working on, but yeah, it’s one of those things where like it’s very much state-by-state, case-by-case, judge-by-judge, how these consequences will play out in the real world. All right, do you have any other final comments you want to make about consequences and stuff like that, or. Just talk to a lawyer because of how compli … like-
Jessica Wildeus Yeah, I mean, and sadly this is like you said it is a very gray area. There aren’t, sometimes some of them are very well known, you know certain things are going to happen with certain plea deals, but it’s not always cut and dry. It can be confusing even for attorney’s. It is, if you’re facing criminal charges it is your attorney’s duty to tell you about direct consequences that stem from taking a plea deal, but in terms of collateral consequences there can be different kinds of repercussions. So, just asking about resources and trying to stay informed, it’s a challenge, it’s probably not what you’re thinking of if you’re facing criminal charges, but it’s something to definitely bring up with an attorney.
Andrew Michael: Especially in the case of plea deals where they can go by relatively fast in the broad scheme of legal things.
Jessica Wildeus Yes, absolutely.
Andrew Michael: Like, it’s something you want to definitely at least Google first before you sign anything.
Jessica Wildeus Yeah, I would think, or have your attorney Google it.
Andrew Michael: Or have your, yeah, and like again I’m going to post, just to say it for like the fourth time this time, I’m going to post a link to go through it. At least search whatever the specific crime is and see what the possible consequences are, because especially it can effect employment is, seems to be the biggest thing. Employment, housing, all these things which sort of disproportionately effect especially people of lower income, minorities, all that kind of stuff.
Jessica Wildeus Right, right. That’s something that we haven’t really touched on, but the idea that if we think of these consequences as punishment, and it’s easy to think of them as punishment even though they’re technically not supposed to be. Then, we think about if they effect a certain part of the population disproportionately, but that’s a whole other can of worms.
Andrew Michael: That is a, I have several humongous books in my room on sociology related to that, which we will not get into today.
Jessica Wildeus Right, absolutely not.
Andrew Michael: Yeah, I think that’s about it for today. Thanks for joining in everybody, we’re going to finish, or … words are hard.
Jessica Wildeus Words are hard.
Andrew Michael: We’ll see you guys next Wednesday, same time, same place. Thanks for joining in, later guys.