Monday, June 13, 2016
A few weeks ago, in United States v Nesbeth (15 CR-18, EDNY, May 24, 2016) Judge Frederic Block wrote an important opinion on the effect of post-conviction collateral consequences on one convicted of a felony, and as a result of such consequences imposed a one-year probation sentence on a woman convicted of importing cocaine. He wrote that "sufficient attention has not been paid at sentencing by me and lawyers - both prosecutors and defense counsel - as well as by the Probation Department to the collateral consequences facing a convicted defendant." He went on to a history of collateral consequences, efforts at reform, and the breadth of post-conviction statutory and regulatory collateral consequences. He noted the "broad range of collateral consequences that serve no useful purpose other than to punish criminal defendants after they have completed their court-imposed sentences."
The opinion is a call for reform, for mitigation of sentences because of such additional punishment, and for increased awareness of collateral consequences by all participants in the sentencing process. Judge Block specifically called for probation officers "to assess and apprise the court, prior to sentencing, of the likely collateral consequences facing a convicted defendant."
Judge Block recognized an apparent Circuit split as to whether collateral consequences may be a mitigating factor in sentencing. The Sixth, Seventh, Tenth and Eleventh Circuit seemingly have found that collateral consequences may not be considered, while the Second and Fourth Circuits appear to have found that they may. I believe that under 18 USC 3553(a) they may, especially when atypical, be considered.
White-collar defendants obviously face not only the usual collateral consequences applicable to all convicted felons, but often also special ones such as loss of licenses or other professional bars. I personally have had limited success in appealing to judges to mitigate sentences against white-collar defendants because of collateral consequences. Many judges feel that that to consider those factors would favor the rich and well-educated over the poor and less-educated. To be sure, as Judge Block's opinion demonstrates, the poor and less-educated too suffer from such collateral consequences.
Defense lawyers should, as Judge Block writes, be aware of such consequences in order to set them forth as mitigating factors at sentencing. Such knowledge is also necessary to inform defendants of these consequences so that they may make an educated decision whether to plead guilty. As indicated by the flurry of defendants who have claimed they were unaware that their guilty pleas would subject them to deportation, lawyers historically may not have focused on collateral consequences.