Prosecutors Should Consider Collateral Consequences

Criminal Law Practitioner Volume 2 Issue 2 Article 9 2015 Prosecutors Should Consider Collateral Consequences Robert M.A. Johnson Follow this and additional works at: https://digitalcommons.wcl.american.edu/clp Part of the Criminal Law Commons, and the Legal Ethics and Professional Responsibility Commons Recommended Citation Johnson, Robert M.A. (2015) "Prosecutors Should Consider Collateral Consequences," Criminal Law Practitioner: Vol. 2 : Iss. 2 , Article 9. Available at: https://digitalcommons.wcl.american.edu/clp/vol2/iss2/9 This Article is brought to you for free and open access by Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Criminal Law Practitioner by an authorized editor of Digital Commons @ American University Washington College of Law. For more information, please contact . Johnson: Prosecutors Should Consider Collateral Consequences Criminal Law Practitioner PROSECUTORS SHOULD CONSIDER COLLATERAL CONSEQUENCES by Robert Johnson The primary goal of a prosecutor, as outlined in the National Prosecution Standards published by the National District Attorneys Association (NDAA), is to seek justice'. In an effort to seek justice, a prosecutor will consider the likely sentence that the offender will receive. In doing so, a prosecutor makes a judgment ofwhether the consequences deriving from the sentence are appropriate and just. officer or member of the military is accused of committing domestic assault.' A domestic assault conviction could carry a collateral consequence of barring the offender from carrying a firearm, which would likely terminate his police or military employment. Losing the ability to carry a firearm is a consequence the prosecutor should consider in an attempt to seek justice. Even if it is ultimately unclear whether the individual circumstance will warrant such a serious result, the risk of such consequences requires the issue to be considered. Other collateral consequences that prosecutors should consider in seeking justice include professional license revocation and disqualification, loss of a driver's license, disqualification from public housing and food stamps, predatory offender registration, and other similar consequences. Most of these collateral consequences can last for years, or even a lifetime. In Padilla c. Kentucky, the United States Supreme Court recognized that the collateral consequence of deportation is difficult to distinguish from other aspects of a criminal The Court reversed Mr. Padilla's sentence. conviction because he was not informed, before he entered his plea, that his conviction would result in his deportation. In his concurrence, Justice Alito recognized the "wide variety of consequences to a criminal conviction."' NDAA's NationalProsecutionStandards provide Another reason that prosecutors should "Prior to negotiating a plea agreement, the prosecution should consider ... the probable know and. understand collateral consequences is sentence if the defendant is convicted .... "4 With that the judges who accept pleas may determine collateral consequences becoming recognized the collateral consequences stemming from as a part of the sentence, prosecutors should sentencing to be unreasonable. Some judges consider them in their search for justice. are known to invoke creative sentencing If options to avoid certain consequences. An example of this is when a police a prosecutor is pursuing a charge that the 1 National District Attorneys Association, judge believes is unjust in the consequences Commentary, National ProsecutionStandards 3rd Edition 12 of a conviction, the prosecutor may face (2012). unreasonable evidentiaryrulings or sentencing.6 Padilla v. Kentucky, 559 U.S. 356, 357 (2010). 2 18 U.S.C. §821 (a)(3) (33). 5 Id. at 376. 3 6 State v. Selyukov, Nos. C5-00-1617, C9-00-1619, National District Attorneys Association, 4 2001 Minn. App. LEXIS 144, at *1.-3 (Minn. Ct. App. Feb. 6, Commentary, NationalProsecutionStandards, 3rd Edition, 2001). 5-3.1. Published by Digital Commons @ American University Washington College of Law, 2014 83 Washington College of Law Summer 2015 1 Criminal Law Practitioner, Vol. 2 [2014], Iss. 2, Art. 9 Criminal Law Practitioner To be an effective advocate, the prosecutor must know and understand the collateral consequences of the pursued conviction. Beyond the overarching goal of seeking justice, the American Prosecutors Research Institute identified public safety as a significant goal of a prosecutor.7 Prosecutors adopt a number of strategies in working to increase public safety. Intuitively, prosecutors often seek significant sentences of imprisonment for offenders as a way to increase public safety. Prosecutors justify this strategy by arguing that some offenders will not commit further crimes if they are in prison, and others will be deterred by the consequences of committing crimes. Research has demonstrated that this strategy is not fully successful.' A more productive strategy to increase public safety is to reduce recidivism, which by definition increases public safety by reducing crime. 9 America undertook considerable work when it transitioned from a rehabilitative model to a retributive incapacitation model as a way to deal with increasing crime rates in the 1970's. As a result, prison populations, together with the fiscal and human costs, greatly increased. A significant contribution to the increased incarceration was probationers and parolees committing new crimes, also known as recidivating. For both public safety and fiscal reasons, there was a need to determine how society might work with offenders to reduce the likelihood that they would reoffend. Hundreds of studies were undertaken to search for guidance in reducing crime.o 7 See Steve Dillingham et al, American Prosecutors Research Institute, Prosecution in the 21' Century: Goals, Objectives, and PerformanceMeasures v (2004), available at http://www.ndaa.org/pdf/prosecution_21st_century.pdf. 8 See Valerie Wright, Deterrence in CriminalJustice: Evaluating Certainty vs. Severity ofPunishment 6 (2010), available at www.sentencingproject.org/doe/Deterrence%/ 20 Briefing%20.pdf. 9 See Recidivism, Nat'l Inst. of Justice, www.nij.gov/ topics/corrections/recidivism (last visited Apr. 13, 2015). 10 The Crime and Justice Institute and the National Institute of Corrections Community Corrections Division, Evidence-BasedPractice to Reduce Recidivism: Implications for State Judiciaries(2007), available at https://www. https://digitalcommons.wcl.american.edu/clp/vol2/iss2/9 84 Washington College of Law Summer 2015 From all of this work, evolved the concept of applying evidence-based practices to reduce recidivism. The term evidence-based practices (EBP) was taken from work in the medical profession to improve health results in hospitals. EBPs refer to practices supported by research evidence rather than intuitive thought that may have no research supporting t (...truncated)