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August 30, 2012

Media request for personal stories from those strugging with collateral consequences

I received this evening a request to help identify persons struggling with the negative collateral consequences of a criminal conviction. The request came from Catherine Day, a producer at HuffPost Live, a new online broadcast network and expansion of the Huffington Post community, and here are the specifics she provided:

On Tuesday, as part of our coverage of the DNC Shadow Convention we will be hosting a live discussion called "Opportunity Lost: Affirmative Access" which will be about how people convicted of nonviolent crimes, such as drug felons are not able to break the negative cycles in their lives due to the loss of access they have to student loans and federal housing.

We need to find guests who would like to share their personal story about how their criminal conviction has made it nearly impossible for them to improve their life due to the inability to afford schooling or housing.  In order to participate in this discussion, each guest needs to be able to have access to a webcam with a strong internet connection on Tuesday at approximately 1:30 PM EST.  We would need to do a camera test in advance at the same computer and in the same location that the guest would be for the segment to make sure everything works alright.

If you would like to share your story, and be a part of this very important discussion on this broken part of our country, please email me at Catherine.Day@huffingtonpost.com.

August 30, 2012 at 09:44 PM | Permalink


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How opportune! And the ABA collateral consequence project will be unveiled next month as well...

Posted by: Gray R. Proctor | Aug 30, 2012 10:19:47 PM

Does not getting to take the bar count? Meh...

Posted by: Guy | Aug 30, 2012 10:51:15 PM

They should try to find that kid that peed in an alley and got put on the Texas sex offender registry.

Posted by: Supremacy Claus | Aug 30, 2012 11:38:18 PM

From the latest edition of "171 Easy Mitigating Factors"

102. Defendant punished by collateral consequences like deportation, loss of professional reputation, family, or need to register, mental health.

See statement of President commuting the 30-months sentence of Lewis “Scooter” Libby on July 2, 2007 (found at http://www.whitehouse.gov/news/releases/2007/07/20070702-3.html (“the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby's sentence that required him to spend 30 months in prison…The reputation he gained through his years of public service and professional work in the legal community is forever damaged. His wife and young children have also suffered immensely. He will remain on probation…The consequences of his felony conviction on his former life as a lawyer, public servant and private citizen will be long-lasting.”); See Koon, 518 U.S. 81 (downward departure appropriate where defendant “significantly burden[ed]” by successive state and federal trials); Padilla v. Kentucky, 130 S.Ct. 1473 (2010) (deportation as the result of a conviction is a “a particularly severe penalty” and is thee “equivalent to “banishment or exile”); U.S. v. Prosperi, 686 F.3d 32 (1st Cir. 2012) (“Sometimes [courts do not] fully recognize the anguish and the penalty and the burden that persons face when called to account, as these men are, for the wrong that they committed.” ); U.S. v. Gardellini, 545 F.3d 1089 (D.C. Cir. 2008) (where defendant convicted of filing false income tax return, and guidelines 10-16 months, district court properly imposed sentence of probation in part because defendant “already suffered substantially due to the criminal investigation”); U.S. v. Garate, 543 F.3d 1026, 1028 (8th Cir. 2008) (noting it was appropriate for the district court to consider, under § 3553(a), the “lasting effects of being required to register as a sex offender”); U.S. v. Anderson, 533 F.3d 623 (8th Cir. 2008) (where D convicted of insider trading and money laundering and guidelines 46-57 months, district court’s sentence of 30 months not unreasonable in part because of collateral consequences where district court “specifically addressed other ways in which the defendant had suffered atypical punishment such as the loss of his reputation and his company, the ongoing case against him from the Securities and Exchange Commission and the harm visited upon him as a result of the fact that his actions brought his wife and friend into the criminal justice system.”); U.S. v. Pauley , 511 F.3d 468 (4th Cir. 2007) (where client pled to possession of child porn. and guidelines 78-97 months, court’s downward variance to 42 months affirmed in part because “The district court also found that Pauley warranted a lower sentence because he lost his teaching certificate and his state pension as a result of his conduct. Consideration of these facts is consistent with § 3553(a)’s directive that the sentence reflect the need for "just punishment," id. § 3553(a)(2)(A), and "adequate deterrence," id. § 3553(a)(2)(B)”); U.S. v. Bannister 786 F.Supp.2d 617 (E.D.N.Y.,2011) (“ Beyond separating convicts from their families and the work force, incarceration imposes numerous collateral consequences. “In every state and under federal law, there are hundreds of collateral consequences that apply automatically or on a discretionary basis, to people convicted of crimes. Most of these apply for life ... and can never be removed, or can be relieved only through virtually unavailable methods like a pardon from the President [.]” Gabriel Chin, The Constitution in 2020 and the Secret Sentence: Rethinking Collateral Consequences, Balkinization (Sept. 30, 2010), http:// balkin.blogspot.com/2010/09/constitution–in–2020–andsecret.html (hyperlink omitted).

Consequences imposed by law include “ineligibility for federal welfare benefits, public housing, student loans, and employment opportunities, as well as various forms of civic exclusion, such as ineligibility for jury service and felon disenfranchisement.” Michael Pinard, Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity, 85 N.Y.U. L. Rev. 457, 459 (2010). Felon disenfranchisement laws, which have their roots in attempts by Whites to suppress African American votes in the late nineteenth century, bar 13 percent of African American men from casting ballots. Erika Wood, Brennan Center, Restoring the Right to Vote 6–7 (2d ed. 2009), available at http://brennan.3cdn.net/5c8532e8134b233182_z5m6ibv1n.pdf. Ex-convicts' difficulties in finding work are discussed in detail below.

Other handicaps limit felons' ability to rehabilitate themselves in more tangible ways. Ineligibility for federal student loans may bar those convicted of drug offenses, even misdemeanors, from attending college or pursuing vocational training after release. See Pinard, supra, at 5 14. Drug offenders are ineligible in many states for receipt of federal welfare benefits. Id. at 494. Felons are ineligible for receipt of public housing assistance for five years after their release from prison, and private landlords routinely, and lawfully, discriminate against applicants based on criminal history. Alexander, supra, at 141–42.

The cumulative effect of such adverse consequences is to render an ex-convict a social pariah. is legal to discriminate against ex-offenders in ways it was once legal to discriminate against African Americans. Once you're labeled a felon depending on the state you're in, the old forms of discrimination ... are suddenly legal. As a criminal, you have scarcely more rights and arguably less respect than a black man living in Alabama at the height of Jim Crow.”
Michelle Alexander, The New Jim Crow: How Mass Incarceration Turns People of Color into Permanent Second–Class Citizens, Am. Prospect (Jan.-Feb.2011), at A19–20. Prior incarceration is a greater predictor of low upward mobility among low-income men than failure to complete high school or very low levels of cognitive ability. Western & Petit, supra, at 14–15. Beyond the direct and indirect consequences of imprisonment, the convict upon reentry must still face those problems that complicated his life before imprisonment but that remain unresolved: poverty; dysfunctional family relationships; addiction to drugs, alcohol, or gambling; and limited education and vocational skills.”); see Ernest Drucker, A Plague of Prisons (The New Press 2011), at p. 47 (“Longer sentences also build incarceration rates a create a chronic condition of social incapacitation for those imprisoned, as they face severe restrictions on their rights and opportunities after release from prison…[they] have a 50 percent or more chance of remaining under the system’s control for life with recurrent arrests and periods of incarceration”).

U.S. v. Baird 2008 WL 151258, (D.Neb. Jan. 11, 2008) (unpub.) (in child porn. case where guidelines 41-57 months sentence of 24 months imposed in part because “the defendant has already suffered serious consequences as a result of his actions. A conviction for possession of child pornography carries considerable stigma. Baird has lost his military career, has a felony conviction on his record, and will have to register as a sex offender:); U.S. v. Dvortsen, 2007 WL 3342578, (E.D.Wis. Nov. 9, 2007) (unpub.) (in money laundering case where guidelines 57-71 months, sentence of one year and one day imposed in part because “defendant had been significantly punished by the monetary forfeitures imposed in this case, which he fully satisfied prior to sentencing and which forced him to disgorge any ill-gotten gains. He paid a heavy financial price, which at least partially satisfied the need for punishment.”); U.S. v. Scott, 503 F.Supp.2d 1097, 1103 (E.D.Wis.,2007) (in case of making false statement to obtain firearm where guidelines 6-12 months, court imposes 6 months home detention in part because “defendant also suffered significant collateral consequences in the probable loss of her MPS job, which added to the punitiveness of her conviction.”); United States v. Vigil, 476 F. Supp. 2d 1231, 1235 (D.N.M. 2007) (finding variance appropriate where defendant in public corruption case was already collaterally punished by loss of his position, loss of his reputation, widespread media coverage of his case, and the emotional toll of two lengthy, public trials); U.S. v. Wachowiak 412 F.Supp.2d 958 (E.D. Wisc. 2006) aff’d 496 F.3d 744 (7th Cir. 2007) (where 24 year old music student convicted of possessing child pornography, and where he is in treatment and low risk of recidivism, and strong support from family and community, court imposes 70 months where guideline range of 121-150 months in part because “the guidelines failed to account for the significant collateral consequences defendant suffered as a result of his conviction. His future career as a teacher was ruined, and he was compelled to resign as piano teacher of children and as a church musician. He will also be forced to live with the stigma of being a convicted sex offender); U.S. v. Samaras, 390 F.Supp.2d 805, 809 (E.D.Wis.,2005) (where defendant convicted of fraud sentence below guideline warranted in part because “as a consequence of his conviction and sentence, defendant lost a good public sector job, another factor not considered by the guidelines”); U.S. v. Stone, 374 F.Supp.2d 983 (D.N.M. 2005) (where D pled guilty to aggravated sex abuse and guidelines 78-97 months, court accepts Rule 11(c) agreement of 60 months because “since this incident...Boeing has terminated Stone's employment and Stone's wife has divorced him. Stone has suffered a lot as a result of his crime [and] the deviation is [only] eighteen months less than the Guideline sentence. The Court concludes that a sixty month term of incarceration, coupled with Stone's personal losses, reflects the seriousness of his offense, promotes respect for the law, and provides just punishment.”); U.S. v. v. Redemann, 295 F.Supp.2d 887, 894-97 (E.D.Wis.2003) (downward departure based on adverse personal and professional consequences from publicized allegations regarding offense of conviction) (“If the circumstances of the case reveal that the purposes of sentencing have been fully or partially fulfilled prior to the imposition of sentence, a sentence within the range set forth by the guidelines may be ‘greater than necessary’ to satisfy” 18 U.S.C. § 3553(a).); United States v. Gaind, 829 F.Supp. 669 (S.D. N.Y. 1993) (downward departure where destruction of defendant’s business provided specific and general deterrence). (departing downward where defendant suffered collateral consequences from conduct including loss of his business); United States v. Gaind, 829 F. Supp. 669, 671 (S.D.N.Y. 1993) (granting downward departure where defendant was already punished by the loss of his business as result of EPA-related charges)

Posted by: Michael R. Levine | Aug 31, 2012 12:47:50 PM

Mr. Levine, very impressive compilation. How do I order your publication?

Posted by: not a lawyer 2 | Aug 31, 2012 2:08:53 PM

"Mr. Levine, very impressive compilation. How do I order your publication?"

A great publication. Has saved my clients many years. Go to his website and follow the link: www.levinemchenry.com

Posted by: Dave in Cal. | Aug 31, 2012 3:38:32 PM

Good to see that at least some courts recognize that for certain crimes and certain persons collateral consequences of a conviction carry as much punishment or even more than time in prison.

Posted by: onlooker | Aug 31, 2012 7:52:25 PM

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