Collateral Consequences of Criminal Convictions
California Lawyer

Collateral Consequences of Criminal Convictions

January 2014

Collateral Consequences of Criminal Convictions: Law, Policy and Practice by Margaret Colgate Love, Jenny Roberts, and Cecelia Klingele
Thomson Reuters Westlaw and National Association of Criminal Defense Lawyers, 1,027 pages, $160, paperback




Collateral consequences - the sanctions and restrictions imposed on convicted persons in addition to the court-imposed sentence and fine - are sometimes longer lasting and more severe than the sentence itself. Among the most notorious collateral consequences are sex-offender registration, sexually violent predator (SVP) commitment, deportation, and the prohibition against owning or bearing firearms.

Such consequences, sometimes called the "secret sentence," can be a quagmire for the criminal defense practitioner, because they are rarely written into charged offenses. The quagmire has grown boggier and more dangerous since the U.S. Supreme Court's decision in Padilla v. Kentucky (559 U.S. 356 (2010)). In that case, José Padilla, a Honduran native, had moved to the United States with his family when he was a teenager. He was a lawful permanent resident, a Vietnam veteran, and a father of citizen children. He had lived in the United States for more than 40 years when he was arrested in Kentucky at a commercial weigh station in 2001. Law enforcement officers found marijuana and rolling papers in the cab of Padilla's truck and "a substantial quantity of marijuana" in the truck itself. Kentucky state prosecutors charged him with felony marijuana trafficking as well as related misdemeanors.

Padilla pled guilty to charges after his attorney advised him that he need not worry about immigration consequences, because he had been in the country for so long. This advice was contrary to current law. Felony trafficking is an "aggravated felony" under U.S. immigration law, and the plea made Padilla both subject to deportation and ineligible for discretionary relief.

However, the U.S. Supreme Court held that Padilla had received ineffective assistance of counsel, and not only because he had been advised incorrectly. Padilla's lawyer had also been constitutionally required to advise him that a guilty plea made deportation "practically inevitable." Although the Court was careful to limit its holding to the deportation consequence of conviction, the implications of Padilla were noted immediately. In his concurring opinion, Justice Samuel Alito called the case "a major upheaval in Sixth Amendment law." McGregor Smyth, executive director of New York Lawyers for the Public Interest, described it as "a revolutionary shift in analysis with an impact on practice that can hardly be overstated." Lower-court opinions have extended Padilla to impose the duty to advise a client about sexual-offender registration, SVP commitment, and extended parole ineligibility.

Collateral Consequences of Criminal Convictions describes both pre- and post-Padilla development of the collateral-consequences doctrine. The book's appendices also offer a state-by-state (and federal) summary of collateral consequences, along with procedures for restoration of such rights as firearm ownership and voting. Unfortunately, parts of the appendices are set in footnote-size type. Also, there are no crime-by-crime charts listing all state and federal collateral consequences. Such charts would be too large to fit into a book, although not, perhaps, onto a CD or USB drive. As the authors note: "collateral consequences are scattered throughout state codes and can be found only with great effort and cost." California is no exception, as its collateral consequences fall into such varied compendiums of law as the Business and Professions Code and the Elections Code.

The collateral-consequences quagmire seems to get deeper every year. "Are there not enough collateral consequences to protest public safety?" the authors ask. "Or are there so many that they represent an unfair burden on convicted persons, and may, paradoxically, impair public safety by making it more difficult for people willing and otherwise able to live law-abiding lives to do so?"

The book doesn't have all the answers to these questions for every crime. It is, however, a valuable research tool for any criminal defense practitioner serving his or her client while trying to avoid a finding of ineffective assistance of counsel up the appellate line.

Ben Pesta is a white-collar and criminal defense lawyer in Beverly Hills.

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