Originally published by Jack Townsend.
The Practitioners Advisory Group (“PAG”), here, A Standing Advisory Group of the United States Sentencing Commission (“USSC”), here, has written a letter, here, to the Chair of the USSC commenting on the USSC’s proposed 2017-2018 priorities. There is no priority relating to tax and thus no comments related to tax. However, the PAG does recommend one priority that is in a general category that tax defense attorneys should pay close attention to — Examination of Collateral Consequences. I have written on collateral consequences in Chapter 12: Criminal Penalties and the Investigation Function, of Michael Saltzman and Leslie Book, IRS Practice and Procedure (Thomsen Reuters 2015), here, ¶ 12.06 Collateral Consequences.
The PAG addresses a subset of the general subject, particularly related to the duties and priorities of the USSC. The discussion is very good, so I cut and paste relevant excerpts:
I. PAG Proposed Priority- Examination of Collateral Consequences
As in prior years, the PAG urges the Commission to consider as a proposed priority the examination of the impact of the collateral consequences of convictions. 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 reentry 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.
In a number of recent cases, federal courts have imposed more lenient sentences in consideration of the severe collateral consequences a defendant would experience. In other cases, courts have sought creative ways to relieve defendants from the effect of collateral consequences long after the court’s sentence has been fully served.
We briefly describe below the ways in which collateral consequences affect the work of sentencing courts. The PAG urges the Commission to take this matter under advisement and to consider scheduling hearings on this issue.
1. Understanding Collateral Consequences and Ensuring that a Defendant has been Notified about Them
In general, the constitutional obligation of advisement is defense counsel’s under the Sixth Amendment, not the court’s. The one situation in which judicial advisement is required under the Federal Rules of Criminal Procedure is where a defendant considering a guilty plea is not a citizen. n82 That said, a federal court is permitted to inform itself about the collateral consequences that may apply in a particular case in order to decide whether to take such consequences into account when fashioning a sentence. The court may ask the probation office, which is part of the judicial branch, for information about collateral consequences, and probation ought to be informed about collateral consequences in any event so that it can assist defendants with reentry and reintegration. Similarly, the court may ask defense counsel for reassurance that counsel has advised the defendant about applicable collateral consequences before accepting a guilty plea or imposing a sentence, if only as a prophylactic measure to guard against subsequent claims of ineffective assistance. n83
n82 See Fed. R. Crim. P. 11(b)(l)(O).
n83 Just last month, the Supreme Court reaffirmed a defense lawyer’s obligation to warn defendants about immigration consequences of conviction. See US. v. Jae Lee, 137 S. Ct. 1958 (20 17). In state courts, the judicial advisement obligation may be more robust, both under the state constitution and applicable court rule, such as where sex offender registration or firearms dispossession may result from conviction. However, such notice has generally not been required in the federal system. Case law developments, notably in the past few years since the Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356 (2010), are described in Chapters 4 and 8 of Love, Roberts and Klingele, COLLATERAL CONSEQUENCES OF CRJMlNAL CONVICTION: LAW POLICY AND PRACTICE (West/NACDL, 2016 ed.).
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. n84 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. 85 The PAG believes that the Commission could usefully consider what if any role it might play in this regard.
n84 The Uniform Law Commission and the American Law Institute have both proposed that sentencing courts should ensure that a defendant has been informed about collateral consequences that might affect willingness to plead, and at sentencing. See Model Penal Code: Sentencing,§ 6x.04(1); Uniform Collateral Consequences of Conviction Act§§ 5, 6 (2010). The ABA Standards for Criminal Justice also impose this requirement. See Collateral Sanctions and Discretionary Disqualification of Convicted Persons, Standards 19-2.3, 19-2.4(b) (2003).
n85 See Model Penal Code: Sentencing § 6x.02.
2. Considering Collateral Consequences in Imposing Sentence
Sentencing courts have been increasingly aware in recent years of the devastating lifelong effects of federal convictions in matters such as employment, housing, licensure, public benefits and immigration status. Some courts have varied from the Guidelines (or departed down) in consideration of the severe collateral consequences to which a defendant is already exposed. One striking recent example is Judge Block’s recent decision in United States v. Nesbeth, 2016 U.S. Dist. LEXIS 68731 (2016), which was the subject of considerable attention in the media. n86 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. n87 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. n88
n86 See, e.g., Lincoln Caplan, Why a Judge Rejitsed to Send a Drug Courier to Prison, The New Yorker, June 1, 2016, available at http://ift.tt/2vN9LtZ.
n87 See cases collected and discussed in Margaret Colgate Love, Collateral Consequences Resource Center, Federal Sentencing & Collateral Consequences (Apr. 15, 2016), available at http:/ I ccresourcecenter. org/wp-content/uploads/2 0 16/0 5/CCRC-Federal-Sentencing-CollateralConsequences-4-20 16. pdf.
n88 See, e.g., United States v. Morgan, 635 F. App’x 423,444 (lOth Cir. 2015); United States v. Musgrave, 761 F.3d 602, 608 (6th Cir. 2014).
In light of the considerable disagreement about the scope of a comt’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.
3. Relief from Collateral Consequences after Service of Sentence
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).
Although many states now allow for expungement or sealing of some minor convictions, the effect of this type of relief is uneven from state to state and unclear even within a single state. n89 Moreover, it may not offer sufficient mitigation. Notably, even if expunged and sealed convictions do not count as predicate offenses under state law, they may still count as prior convictions under the Guidelines if they are not based on “innocence or errors of law.” See U.S.S.G. § 4Al.2(j), Application Note 10. n90
n89 See Restoration of Rights Project, Collateral Consequences Resource Center et al., http://ift.tt/2smUt8K (last visited July 29, 2017).
n90 For a discussion of the types of relief that may constitute “expungement” under U.S.S.G. § 4Al .2(j), see United States v. Matthews, 205 F.3d 544, 546-549 (2d Cir. 2000). We note in this regard that the New York Times has expressed doubts about the efficacy of expungement, see Editorial Bd., Job Hunting with a Criminal Record, N.Y. Times, Mar. 19, 2015, at A26, and the Marshall Project has commended j udicial “forgiving” remedies newly popular in the states. See Eli Hager, The Marshall Project, Forgiving vs. Forgetting (Mar. 17, 2015; 5:53 PM), http://ift.tt/2vMW6CQ.
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