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Sentencing Commission Practitioners Advisory Group Advocates a Closer Look at the Collateral Consequences of Conviction

The U.S. Sentencing Commission Practitioners Advisory Group (PAG) is comprised of a private defense bar representative from each Circuit as well as national at-large representatives. (Disclosure: I have the privilege of being the appointed Chair of the PAG, but this post reflects my views only and not that of the PAG.)  

Among other things, the PAG provides written comments each year on the Commission’s proposed priorities (as well as on the Commission’s proposed Guideline amendments which are usually announced near the end of the calendar year). The Commission’s 2017-2018 proposed priorities are found here.  

On July 31, 2017, the PAG filed this letter with the Commission giving its position on the Commission’s proposed priorities and also encouraging the Commission to make a priority of studying the collateral consequences of conviction. On this latter point, the PAG wrote:

Collateral consequences — the legal penalties and restrictions that take effect automatically without regard to whether they are included in the court's judgment — are frequently the most important aspect of punishment from a defendant's perspective. Convicted individuals face reduced employment and housing opportunities, legal barriers to occupational and business licensure, driver's license suspensions, voting restrictions, and many other collateral consequences that make successful re-entry more difficult. Some states still have full or partial bans on welfare and food stamps for people who have felony drug convictions. Such limitations can have a crippling effect on the individual, who may have to support a family, yet is unable to rely on any of these important programs.

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While judicial notice about collateral consequences may not be mandated in the federal system outside the immigration context, either by counsel or court, such notice has been recognized as sound practice by the major national law reform and professional organizations of lawyers The Model Penal Code gives the sentencing commission responsibility for collecting collateral consequences and providing guidance to sentencing courts relating to their consideration of collateral consequences at and after sentencing. The PAG believes that the Commission could usefully consider what if any role it might play in this regard.

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Some federal courts of appeal have upheld the relevance of collateral consequences to a determination of "just punishment" and the need for deterrence under 18 U.S.C. § 3553(a), allowing them as a basis for varying downwards from the Guidelines range. Others have disallowed them based on because of the resulting risk of socioeconomic bias in favor of more privileged defendants who have the most to lose in the civil sphere….In light of the considerable disagreement about the scope of a court's authority to adjust the length of a prison sentence because of collateral consequences, the PAG strongly urges the Commission to study and consider developing guidance on the interplay between collateral consequences and the Guidelines. The PAG urges the Commission to consider, in connection with any study of collateral consequences it may undertake, whether it should encourage courts to consider the impact of collateral consequences in order to further the rehabilitative goals of sentencing and to avoid issues of disproportionate severity.

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The PAG also encourages the Commission to consider the role of federal courts in mitigating the impact of collateral consequences after a defendant has served a sentence. As the Commission is aware, the issue of a federal court's inherent authority to expunge a conviction appears uncertain. See Doe v. United States, 833 F.3d 192 (2d Cir. 2017), rev'g 110 F. Supp. 3d 448 (E.D.N.Y. 2015). One district court in New York recently denied expungement citing lack of sufficient hardship, but granted a "Certificate of Rehabilitation" to enable a defendant to overcome her inability to secure employment in her chosen profession because of her conviction. Doe v. United States, 2016 U.S. Dist. LEXIS 29162 (E.D.N.Y. 2016).

Given the current bipartisan support for criminal justice reform in and outside of Congress, perhaps the issue of taking collateral consequences into account in sentencing and community re-entry will gain some traction. We will continue to follow this issue.

Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.

About the Author

Ronald H. Levine is Chair of Post & Schell's Internal Investigations & White Collar Defense Group and former Criminal Division Chief at the U.S. Attorney’s Office in Philadelphia. He counsels and defends corporations, as well as directors, executives, professionals and others, confronting potential allegations of fraud or other misconduct at all stages of the government enforcement cycle.

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