Overworked and Underpaid: A Criminal Defense Attorney’s
Guide to Using Invisible Punishments as an Advocacy Strategy

McGregor Smyth[1]

“Every saint has a past and every sinner a future.”— Oscar Wilde

Introduction

            The legal disabilities and social exclusion resulting from any adverse encounter with the criminal justice system erect nearly insurmountable barriers for criminal defendants, people with criminal records, those returning to their communities after incarceration, and their families.[2]  Recent scholarship has highlighted the draconian effects of these invisible punishments[3] and has argued that criminal defense attorneys should expand their practice to this area.[4]  Few of these articles, however, have explored the practical difficulties of taking account of hidden sanctions in defense work, or how new advocacy strategies based on these sanctions may actually benefit the defense.  From a defense attorney’s perspective, particularly one who represents indigent clients, an expanded vision of advocacy is both exciting and extremely daunting.

            Any approach to true reform must accept the fundamental truth that criminal justice practitioners have a difficult job.  Public defenders and others who represent indigent people charged with crimes operate under crushing caseloads and within unsympathetic court systems.[5]  To be viable, a practice model must understand this context and avoid mandating unreasonable duties.

When considering the complex web of invisible punishments in the aggregate, the task of incorporating them into daily defense practice appears overwhelming.  But I consult with defenders every day, and I can assure practitioners of two things:  (1) A number of practical tips can make a world of difference for many clients – especially if you routinize them – and can actually result in improved criminal dispositions; and (2) even if you cannot avoid a hidden consequence, your client cannot make an informed choice unless you explain it.

This paper provides a roadmap for incorporating invisible punishments into criminal defense practice.  First, it will outline the broader context of client need that militates for an altered defense role.  Part II will discuss one attempt at a coordinated approach – the new ABA Criminal Justice Standards on Collateral Sanctions and Discretionary Disqualification of Convicted Persons – and examine their contributions and limitations in supporting this altered role.  Part III will lay out in detail how defense attorneys can use knowledge of hidden sanctions to obtain better outcomes in criminal cases and improve their advocacy.  Part IV will describe strategies for defenders to gain the requisite knowledge of invisible punishments through existing resources and collaborations.

I:  The Real Repeat Offenders – Poverty & Despair

Two-thirds of those released from state prisons will be rearrested within three years.  One-half will be convicted of a new crime.[6]

There is little question why.  We know from experience that if formerly incarcerated persons cannot find work, shelter, or help, they are much more likely to be caught in a recurring cycle of crime.[7]

This cycle of crime is perpetuated in significant part by the collateral damage inflicted by the criminal justice system: (1) Most people cycle through the criminal justice system as a result of deep and interrelated social problems – such as homelessness, addiction, unemployment, or mental illness – that existing social services have failed to address.  (2) The ensuing arrest, criminal charge, or conviction can result in significant legal and practical disabilities that only exacerbate the social problems that often contribute to offender behavior.[8]

From arrest to reentry into the community, a web of sanctions haunts defendants and their families.[9]  An arrest and criminal charge alone can have a devastating impact.  For example, a person charged with a crime must appear regularly in court, and the resulting days of missed work frequently cause the loss of a hard-earned job.  Poorer defendants are disproportionately affected by this phenomenon as they are more likely to have jobs without vacation benefits, flexibility, or labor protections.  In addition, a vast array of jobs requires public licensing, and these licenses are frequently suspended at the moment of arrest.  New York alone has over 100 licensing regimes, from barber and security guard, to cosmetologist and nurse.  The increased automatic dissemination of arrest data to these licensing regimes is making these suspensions the rule rather than the exception.  Similarly, an arrest alone often triggers termination proceedings in publicly subsidized or private housing, without regard to the eventual criminal disposition.[10]  To provide some context, in New York State, more than one in three people arrested are never convicted of any crime or offense,[11] but they still suffer drastic consequences from their arrest.

Convictions, of course, can lead to immediate eviction, termination of employment, loss of benefits, or deportation:

¨      A plea to Disorderly Conduct, defined by New York law as a non-criminal offense, makes a person presumptively ineligible for New York City Public Housing for two years.[12] 

¨      Two convictions for turnstile jumping makes a lawful permanent resident non-citizen deportable.[13]

¨      A conviction for any crime bars a person from being a barber, boxer, or bingo operator.[14]

¨      Simple possession of a marijuana cigarette cuts off federal student loans for a year.[15]

These hidden sanctions often have a more severe impact on clients, their children, and their families than the immediate criminal sentence.[16]  They even restrict participation in the most fundamental processes of our democratic system.[17]  When given an informed choice, many clients will opt for longer terms of imprisonment rather than face deportation and separation from their families, or the eviction of their entire family from their home.[18]

In addition, incarcerated persons face an array of legal, economic, and social hurdles as they are released from prison or jail and try to reenter their communities.  More than 600,000 people have been released from the nation’s prisons every year since 1998.[19]  Over 2 million are released from local jails.[20]  Many of the hardships faced by this population stem from the legal disabilities resulting from their convictions as well as other factors resulting from incarceration.[21]  Moreover, these hidden sanctions are imposed on a population subject to disproportionate public health vulnerabilities – higher rates of childhood abuse, homelessness, HIV infection and other infectious or chronic diseases, drug or alcohol abuse, mental illness, and physical or sexual abuse than the general population.[22]  Persons leaving prison or jail are released into the same service-deficient environment after having received inadequate or no rehabilitation or training while incarcerated, and they now have a new gift from the system – the scarlet letter “C” of a criminal conviction.[23]

Invisible Punishments in Context

            We have to appreciate the context in which these invisible punishments are imposed – the  deep inequities of the current criminal justice system.  First, many people going through the system never should have been there in the first place.  Recent criminal justice policy has literally created a class of “criminals” through “quality-of-life” or order-maintenance policing that criminalizes petty social ills such as public urination and public drinking.[24]  People in targeted neighborhoods – almost without exception communities of poverty and communities of color – easily rack up misdemeanor records for these minor activities.  One can debate the efficacy of this law enforcement policy,[25] but the fact remains that individuals swept up in these campaigns suffer disproportionately for their offenses.  As demonstrated above, even these minor criminal records can have devastating effects on a person’s ability to live and work.[26]  And the attendant invisible punishments nearly ensure that the road to stability is impossible to navigate.

            In addition, recent attention to issues of factual innocence has increased public awareness of the fallibility of the criminal justice system.[27]  Underlying issues of race, class, and other forms of bias improperly influence decisions at every stage, from arrest, ID procedures, and charging decisions, to bail, plea offers, and jury decisions.[28]  Moreover, many commentators have written extensively on the overwhelming pressures on indigent clients to plead guilty regardless of culpability.[29]

            A closer look at conviction data belies the common media perception of people with criminal records as predators.[30]  In New York State in 2002, more than two thirds of adult arrests were for misdemeanors, and only 9% were for violent felonies.[31]  Only 62% of arrests resulted in convictions.[32]  Nationwide, almost 75% of those released from state prison – i.e., those convicted of felonies and sentenced to more than a year in prison – were convicted of non-violent offenses.[33]  Of felony convictions in all state courts in 2000, only 18.7% were for violent offenses.[34]  Moreover, even the label of “felony” can have little relation to the severity of the offense.[35]

We must use this knowledge to move the conversation about criminal justice out of the polemics of fear mongering and “tough on crime” politics. 

Inadequate Services Despite Special Needs

            The community directly affected by these hidden consequences of the criminal justice system, from arrest to release, is astonishing.  By some estimates, more than one in three adults in the United States – over ___ million – have a criminal record.[36]  Over 80% of those charged with crimes are indigent and unable to afford an attorney.[37]  The disparate racial and economic impacts cannot be overstated, and are well-documented.[38]  If current incarceration rates remain unchanged, an estimated one in fifteen persons born in 2001 will serve time in a prison during their lifetime.  The chance rises to one in three for African-American males.[39]  Countless families are affected: over ten million children have parents who were imprisoned at some point in the children’s lives.[40]

An alarming gap in services, however, exists for those involved with the criminal justice system.  This gap primarily manifests itself in three ways:  (1) Many clients simply cannot obtain necessary services, particularly legal services to cope with hidden civil consequences.[41]  (2) The existing services are fragmented into silos and marked by a lack of coordination and communication.  (3) When clients do access services, the providers are often uninformed about the wide-ranging consequences of criminal proceedings, particularly outside of their narrow practice area.[42] 

These problems are resistant to conventional service solutions because the effects of involvement with the criminal justice system cut across traditional divisions of labor among social services agencies, civil legal aid, and criminal defense.[43]  For example, a person charged with endangering the welfare of a child could easily have a criminal defense attorney handling his criminal case, a family court attorney handling a related civil action on abuse, neglect, or termination of parental rights, a civil legal services attorney handling his eviction case, and a social services agency providing treatment services.  Rarely do these players communicate effectively with each other.  In addition, as recognized by the Standards, in many cases people charged with crimes, their defenders, civil legal services lawyers, prosecutors, and judges are unaware of these effects at critical decision-making points.[44]

The problems that this client population face do not fall into neat categories.  The breadth of hidden consequences described above demonstrates that this special-needs population requires coordinated advocacy, not segregated services.  Conventional divisions of labor cannot address this need.  These complex problems beg comprehensive solutions. 

Breaking the Cycle

            Invisible punishments provide useful proxies for the structural issues that trap low-income clients in recurring encounters with the criminal justice system.  Coordinated or integrated services can target these hidden consequences to resolve clients’ problems in a comprehensive manner.  The Bronx Defenders’ experience, for example, has shown that

 ¨         Comprehensive services can help stabilize a family during the crisis of a criminal case and address many of the underlying social and legal problems (such as addiction and homelessness) that contribute to the cycle of poverty and crime.

 ¨         By mitigating the collateral damage of criminal proceedings (such as eviction or loss of a job), comprehensive services can address the root problems that lead to crime and help clients re-enter society as productive citizens.

 As described in detail below, the defender plays a critical role in this broader conception of criminal justice because of its unique potential for early intervention in the cycle of crime.[45]

II:  One Attempt at a Coordinated Approach – the ABA Standards

The new Criminal Justice Standards on Collateral Sanctions and Discretionary Disqualification of Convicted Persons, adopted by the ABA on August __, 2003, have been described as the “first effort since the 1970s to address the collateral legal consequences of a conviction in a coherent and comprehensive fashion.”[46]  As a set of policy recommendations, they provide a useful focus for a discussion of an expanded defense role.

            Summary of the New ABA Standards on Invisible Punishments

            The new Standards have two overarching goals.  First, they intend to promote awareness of the full legal consequences of a criminal conviction, particularly those imposed automatically upon conviction.  As stated in the drafters’ Report to the House of Delegates, “[t]here is no justification for the legal system to operate in ignorance of the effects of its actions.”[47]  Second, the Standards propose to focus attention on the deleterious effects that hidden punishments have on the process by which a convicted person reenters his community and attempts to become a law-abiding and productive member of society.  These invisible sanctions “restricting convicted persons in their life activities have multiplied” and participate in “the creation of a class of people who live permanently at the margin of the law.”[48]

            The Standards begin with two legal distinctions that reflect these goals:

(a) The term “collateral sanction” means a legal penalty, disability or disadvantage, however denominated, that is imposed on a person automatically upon that person’s conviction for a felony, misdemeanor or other offense, even if it is not included in the sentence.

(b) The term “discretionary disqualification” means a penalty, disability or disadvantage, however denominated, that a civil court, administrative agency, or official is authorized but not required to impose on a person convicted of an offense on grounds related to the conviction.[49]

The Standards use these definitions to create a bifurcated set of policy recommendations – a strong set focused on “collateral sanctions,” and a weak set focused on “discretionary disqualifications.”

                        Collateral Sanctions

            The robust standards on collateral sanctions intend to define and limit the scope of sanctions, ensure notification about and consideration of the sanctions during the criminal case, and provide a judicial or administrative mechanism for obtaining relief from the sanctions.[50]  As a first step to limiting collateral sanctions, the Standards attempt to expose them – they require each legislature to collect or reference all collateral sanctions in a single chapter of the jurisdiction’s criminal code.  The new part of the code should “identify with particularity the type, severity and duration of collateral sanctions applicable to each offense or to a group of offenses specifically identified by … easily determinable means.”[51]  The Standards therefore recognize that a compilation of hidden sanctions is critical to achieving meaningful policy change and to incorporating invisible punishments into daily legal practice.[52] 

Standard 19-2.2 then provides a general rule of limitation, wherein a legislature should not impose a collateral sanction unless it determines that it cannot reasonably contemplate any circumstances in which imposing the sanction would not be justified based on the conduct underlying the offense.  A number of specified collateral sanctions are prohibited: disenfranchisement; deprivation of judicial rights, including the rights to initiate or defend a lawsuit and to jury service; deprivation of domestic relationship rights, including divorce, parental rights, and adoption; deprivation of real or personal property rights; and ineligibility for government programs providing “necessities of life,” including food, housing, clothing, and medical care, or programs relevant to successful reentry into society.[53]

To incorporate collateral sanctions into the criminal case, the Standards require notification of the sanctions before a plea of guilty, and consideration of the sanctions at sentencing.  Standard 19-2.3 states that the rules of procedure should require a court, before accepting a guilty plea, to ensure that a defendant is fully warned about the consequences of his plea.  A statement on the record that defense counsel has satisfied her duty of advisement under Standard 14-3.2(f) is sufficient.[54]  Moreover, the sentencing court by law should consider collateral sanctions in determining the overall sentence.[55]  In this way, the court can ensure that the “totality of the penalty is not unduly severe and that it does not give rise to undue disparity.”[56]

Finally, the Standards require procedures for waiver of, modification of, and relief from collateral sanctions.  Individual sanctions, including those for convictions outside the jurisdiction, should be subject to a modifying or waiver order by a court or administrative body.[57]  In addition, a convicted person must have access to a legal process to obtain an order relieving all collateral sanctions.[58]

            Discretionary Disqualifications

A noticeably weaker set of provisions applies to discretionary disqualifications that are imposed by separate judicial or administrative action.  The goal of these Standards is to reduce unreasonable barriers to reentry.[59]  First, Standard 19-3.1 establishes a much weaker rule of limitation by prohibiting discretionary disqualifications unless “engaging in the conduct underlying the conviction would provide a substantial basis for disqualification even if the person had not been convicted.”[60]  Second, there must be some process for review of and relief from discretionary disqualifications.[61]  Third, the Standards prohibit denial of insurance or employment licenses on the basis of convictions, subject to the general exception listed above.[62]  Notably, the Standards do not set forth any general protections against discrimination in private employment, opting instead for encouragement of employment through financial incentives and otherwise.[63]

Holistic Defense and the Contributions of the New Standards

The new Standards represent a significant progression in the conventional conception of criminal justice by recognizing that collateral consequences simply are not collateral.  In their own small way, they represent a mainstreaming of an alternative approach to public defense, often called community or holistic defense.  This vision of public defense has been described in many ways,[64] but in essence exhorts advocates to serve a client as a whole person – a person with complex needs, a family, and a part of a community – rather than a case or a legal issue.[65]

On one level, the most shocking feature of this vision is its banality.  How could it be innovative or revolutionary to provide comprehensive services to clients with complex needs, or to view a person as … a person?  Outside of the context of serving those who live in poverty, people grasp this need immediately and consider it the most basic of propositions.[66]  Unfortunately, when the focus turns to those who live in poverty, what once was obvious becomes revolutionary.  What once was a basic tenet of representation becomes a Cadillac model.  What once was reflexive becomes too much to ask.

Make no mistake – this vision is revolutionary within the world of public defense.[67]  The simple fact is that implementation of this broader vision is rare.  Many institutional barriers, such as fragmented justice funding and calcified organizational design, make housing comprehensive services in one office extremely difficult.[68]  The complexity of the law, fragmentation and restrictions of funding streams, and organizational inertia are only a few of the reasons why services remain Balkanized.[69] 

Defenders, in particular, face substantial obstacles to realizing this vision.  The traditional defense role is to focus on the client’s immediate legal needs, and traditional defenders believe that “removing or reducing the imminent threat of incarceration is their function.”[70]  The unique burdens imposed on public defenders by high caseloads and limited funding provide significant disincentives to expanding this role or changing office culture.  Given these intractable barriers, the success of programs that have been able to expand their services across the civil/criminal divide is astonishing.[71]  The new Standards contribute to this movement by encouraging expansion of defense services into one area of holistic services – hidden punishments.

Limitations of the New Standards

In limiting their scope to particular definitions of “collateral sanctions” and “discretionary disqualifications,” however, the Standards ignore significant invisible punishments suffered by those touched by the criminal justice system.  The Standards only cover two classes of hidden sanctions:  collateral sanctions and discretionary disqualifications.  The definitions of these penalties, however, replicate two fundamental flaws of traditional criminal justice policy.  First, the definitions on their face only apply to consequences arising from convictions.  Second, although the Standards attempt to collapse the legalistic distinction between “collateral” consequences and “direct” consequences, they duplicate this legal fiction in the false distinction between “sanctions” and “discretionary disqualifications.”

            On one level, these definitions make a rational and understandable attempt to categorize, define, and limit.  The Standards must provide clear guidance for policy makers and institutional players contemplating their adoption.[72]

These limitations on the Standards, however, significantly reduce their impact and ignore the actual experiences of those suffering under invisible punishments.  As Kent Markus notes, the public now has extraordinary access to a range of criminal history data to use in any number of standardless, discretionary decisions for employment, housing, licensing, and other sustaining life activities.[73]  Because of the dearth of information on how well criminal history information works as a predictor of risk, decisionmakers – concerned with liability and the appearance of impropriety – tend to a zero-tolerance approach.[74]  Private employers, landlords, and other decisionmakers are increasingly using any arrest or criminal justice involvement to deny access, regardless of the actual disposition or conviction.[75]

In addition, many of the most damaging hidden punishments qualify only as “discretionary disqualifications” under the current definition.  Most immigration, public housing, and employment decisions technically require the intervening decision of an independent court, agency, or official.  Because these consequences fall outside of the strict “collateral sanction” definition, the strongest provisions of the Standards do not apply.[76]  For example, none of these punishments would be codified in the criminal code section on “collateral sanctions,”[77] the court or defense counsel would not notify a person charged with a crime of their existence,[78] and the sanctions would not be considered at sentencing.[79]  By carving out such large exceptions to its most powerful mandates, the Standards threaten to doom themselves to irrelevance.[80]

            These deficiencies argue for a broader definition that encompasses the actual experiences of people harmed by contact with the criminal justice system.  In addition, this broader view expands the strategies that defense attorneys can use to improve their own practice. 

III:  How Role Expansion Can Benefit Criminal Defense Attorneys

            The breadth of these hidden consequences is daunting, both to clients and their defenders who are faced with learning them.  When you raise the subject in a room full of defenders, a variety of passionate responses emerge, but largely distill to two opinions:

·        Why should I even care?  I’m a defense attorney, not a social worker or civil lawyer.

·        I know it’s important, but I just don’t have time.  I have to prioritize my client’s needs and only concentrate on her liberty interest.

 These positions must be answered directly.  Our experience at The Bronx Defenders, however, proves that knowledge of these consequences is a critical direct advocacy tool for the defense in criminal cases.

            As public defenders, we meet individuals as their lives, their families, and their communities are in crisis.  Indeed, defenders are often the first to hear about the devastating problems that face the people they represent – a wrongful post-conviction eviction of a family from public housing, loss of the public assistance that enables a mother to make ends meet, police abuse during a search or an arrest, or removal of the Medicaid benefits that permit an elderly man to keep his diabetes under control.  Accordingly, public defenders have a unique opportunity for early intervention in a crisis.  Proper civil advocacy around these issues can result in the reinstatement of benefits or employment, or the prevention of an eviction, often effectively eliminating the legal difficulties that catalyzed the initial arrest.  A goal of this article is to convince other defenders that by looking beyond the criminal case, they become more effective advocates within the criminal case.

            Improved Criminal Dispositions

            Since the establishment of the Civil Action Project four years ago, The Bronx Defenders has built an expertise in the full range of hidden consequences and, more important, the art of using that knowledge to improve outcomes in criminal cases.  Experience has taught that defenders can be successful at leveraging more favorable pleas – or even outright dismissals – when they are able to educate prosecutors on the draconian consequences for the clients and their families.  Knowledge of these consequences and zealous defense advocacy have preserved many clients’ hard-earned jobs and prevented many evictions from subsidized housing, and have resulted in improved dispositions in the criminal cases.

            In our experience, prosecutors and judges respond best to consequences that offend their basic sense of fairness – consequences that are absurd, disproportionate, or affect innocent family members.  Four major categories of hidden punishments provide the most leverage:  (1) Immigration; (2) Housing (loss of public housing or Section 8); (3) Employment (loss of a job or employment license, particularly for the primary breadwinner; and (4) Student Loans. 

            Four actual case studies can illustrate the power of this knowledge as an advocacy tool:

·        Juan R. was charged with a drug crime, and the prosecutor refused any plea below a misdemeanor.  Juan, however, was disabled and lived in public housing, and a misdemeanor would result in his eviction.  Knowing the public housing rules on termination for criminal activity, the defense attorney convinced the prosecutor to consent to a non-criminal disposition, and Juan kept his home.

·        Joanne F. had worked hard to get a steady job as a security guard.  In a domestic incident with her boyfriend, she was charged with Assault and Harassment.  The initial plea offer would have resulted in the loss of her security guard license and her job.  The defense attorney used this disproportionate consequence to convince the prosecutor to offer an adjournment in contemplation of dismissal.[81]  Joanne kept her job, and her stability.

 ·        This summer, Max S. was 18 years old and charged with possession of a marijuana cigarette.  The prosecutor would only offer a plea to a marijuana violation, defined by New York law as a non-criminal offense.[82]  Max, however, was enrolled for his freshman year in college in the Fall and had secured critical federal student loans.  Under draconian federal law, even a non-criminal plea to a drug offense would render Max ineligible for student loans and thus unable to attend college.[83]  Using knowledge of this sanction, the defense attorney persuaded the prosecutor to offer an adjournment in contemplation of dismissal.  Max has now started college.

·        [Need Immigration plea example.]

Risk Management

A substantial number of invisible punishments require a separate proceeding to impose them.  When a client lives in subsidized housing, is accused of endangering the welfare of a child, is a public employee or has an employment license, has a driver’s license and is accused of a drug or driving offense, or is a non-citizen, defense attorneys should take note.  All of these cases implicate situations where client is likely to have an ancillary civil or administrative proceeding pending at the same time as the criminal case. 

Identifying these situations is critical because clients will often testify or give written statements in these collateral proceedings about the underlying facts of the criminal case, with or without their defense attorney, and often in the presence of a government lawyer.  Keep in mind the changed context of a civil or administrative proceeding – clients can invoke the Fifth Amendment privilege against self-incrimination, but they will be penalized for it with an adverse inference.[84]   

For example, in New York City, the District Attorney’s office in each borough staffs a Narcotics Eviction Unit that forces private landlords to evict tenants virtually any time there is a drug arrest on the premises.[85]  These eviction cases are brought in one courtroom in Housing Court, and a representative of the DA’s Office sits in that court all day, listening to clients answer the eviction cases and directing the landlords’ attorneys.  These statements can obviously affect the criminal case.  But a defender first has to be familiar with the invisible sanctions and the separate proceedings that result so that she can anticipate these statements.

            Additional Discovery

Eviction cases, family law matters, employment licensing proceedings, DMV suspension hearings, immigration proceedings, school suspension hearings – these are all venues where an administrative or lower court judge is likely to have subpoena power.  If a defense attorney knows the range of relevant hidden punishments and related ancillary proceedings, she can exploit them for additional discovery not available in the criminal case, given the horrid state of affairs in criminal discovery.

Effect on Plea Bargaining System

            Because of the drastic effects on clients and their families, a defense attorney must counsel her client on the relevant invisible punishments so that the client can make an informed decision about whether to accept a plea bargain or go to trial.[86]  The ABA Standards on Pleas of Guilty require warnings from both the court and defense counsel about hidden sanctions.  Standard 14-1.4(c) (“Defendant to be advised”) stipulates:

Before accepting a plea of guilty or nolo contendere, the court should also advise the defendant that by entering the plea, the defendant may face additional consequences including but not limited to the forfeiture of property, the loss of certain civil rights, disqualification from certain governmental benefits, enhanced punishment if the defendant is convicted of another crime in the future, and, if the defendant is not a United States citizen, a change in the defendant's immigration status. The court should advise the defendant to consult with defense counsel if the defendant needs additional information concerning the potential consequences of the plea.

Moreover, Standard 14-3.2(f) requires:

To the extent possible,[87] defense counsel should determine and advise the defendant, sufficiently in advance of the entry of any plea, as to the possible collateral consequences that might ensue from entry of the contemplated plea.

Remarkably, Standard 14-3.1, detailing the responsibilities of the prosecuting attorney, requires no consideration of these punishments in charging decisions or plea offers.

            First and foremost, this counseling requirement, referenced by the new Standards, ensures that the defense attorney is representing the client as a whole person, with complex interests, rather than simply as a person charged with a crime.  As other scholars have noted, ensuring that clients understand hidden sanctions can counteract the perverse incentives to plead guilty on cases with minor traditional consequences such as imprisonment or fines.[88]  In such cases, including misdemeanors, traffic violations, and non-criminal offenses, even factually innocent defendants believe that they have limited incentives to contest the charges.  Full knowledge of the invisible punishments that will haunt them may cause them to reconsider.

Defendants’ increased awareness of the actual consequences that they will face may indeed lead to marginally fewer pleas.  In addition, defense counsel’s use of these sanctions as leverage during the plea bargaining process will marginally prolong cases, often by at least one court appearance as the cases are adjourned for longer negotiations.  We have to recognize that these two phenomena could have a significant aggregate effect on caseloads in our already-overburdened courts.[89]

At the same time, many commentators have expressed concern that the courts and the increasing power of the prosecution pressure too many indigent defendants to plead.[90]  A system slowdown based unwaveringly on the fulfillment of ethical duties of counsel and constitutional concerns about the voluntariness of pleas may actually create positive pressures – pressures on criminal justice policymakers to stop using the criminal justice system as a sledgehammer to solve social problems.

A Practical Guide to Issue-Spotting

            To help defense attorneys triage for hidden punishments that (a) have the most devastating impact on their clients, and (b) have the greatest potential for positively affecting the disposition in the criminal case, each attorney or office should implement a simple screening system.  At the first contact with the client, intake personnel should focus on four simple questions:[91]

a.                   Immigration status: where were you born?[92]

b.                  Housing status:  Do you live in publicly-subsidized housing (public housing or Section 8)?

c.                   Employment status:  Are you a public employee or do you hold an employment license?

d.                  Student loans:  Do you receive student loans, or do you attend or are you planning to attend a post-high school educational institution?

 If the client answers “yes” to any of these questions, then the attorney knows to be vigilant about potential invisible sanctions that will hobble the client long after the criminal case is over.  This information can then be used to counsel the client and guide negotiation strategy.  If the office or attorney uses a standardized client folder, these questions can be pre-printed on the inside cover of the folder to remind advocates to ask them and to consider properly their importance throughout the life of the case.

With these principles in mind for identifying clients affected by hidden consequences, four general practice tips will further guide defense attorneys in incorporating the Standards into their daily practice:

●  Always advise your clients to attend a relevant treatment program – drugs, alcohol, violence.  Such “evidence of rehabilitation” can prove invaluable to your client.[93]

●  Always apply for a certificate of rehabilitation, if available in your jurisdiction.[94]

●  Talk to your clients.  There’s a good chance that they are making statements on the record about relevant facts in ancillary civil proceedings.

●  Broaden your strategy.  Consider exploiting these ancillary civil proceedings as a way of getting discovery for the criminal case.

IV:  Overcoming the Problem of the Learning Curve

            Even when convinced of the necessity and efficacy of learning the range of hidden sanctions, defenders still must overcome the practical obstacle of how to do it.[95]  We cannot fool ourselves – this mandate is daunting.  As the new Standards note, these sanctions are “hidden” precisely because they are scattered through federal, state, and local statutes, regulations, and policy memoranda. 

Existing Resources

Many practical resources already exist to assist defenders in their education and training.  The most comprehensive support infrastructure is organized around hidden immigration punishments.  A wealth of excellent practice materials are available to guide defense attorneys through the immigration consequences of criminal convictions.  The Defending Immigrants Partnership (DIP) – an initiative of the Immigrant Legal Resource Center, the National Immigration Project, the New York State Defender Association and the National Legal Aid and Defender Assocation – offers invaluable references.[96]  DIP “brings together immigration law experts and public defense counsel to ensure that indigent noncitizen defendants have meaningful access to justice.” [97]  The Partnership has created a network of national and local immigration specialists and defense attorneys to map the application of federal immigration law to each state’s criminal code, and it offers extensive trainings and technical assistance on individual cases.

Broad compilations of invisible punishments do exist in a growing number of jurisdictions, such as Arizona (Arizona Public Defender Association and Maricopa County Public Defender), the District of Columbia (Public Defender Service of DC), Maryland (University of Maryland Law School), Michigan (Michigan State Appellate Defender Office), New York (The Bronx Defenders), Ohio (University of Toledo Law Review), and Washington (Washington Defender Association).[98]  Many of these compilations were written specifically for defense attorneys.  Efforts are ongoing in other jurisdictions, including Connecticut, Minnesota, and New Jersey.[99]

If a compilation does not exist in a jurisdiction, an advocate’s starting point should be the Legal Action Center’s groundbreaking 50-state survey, After Prison: Roadblocks to Reentry – A Report on State Legal Barriers Facing People with Criminal Records.[100]  The survey compiles the consequences that each state imposes in seven major areas: Employment, Housing, Benefits, Voting, Access to Criminal Records, Parenting, and Driving, and it explains the federal limitations on student loans.  Its Report Card grades each state on the extent of its invisible punishments, and its Vision for the Future offers a set of recommendations that federal and state policymakers can use to “help reintegrate people with criminal records into society in ways that better promote public safety.”[101]  Of particular note, the 50-state survey includes a listing of all statutory citations – a substantial aid to future local efforts. 

In addition, the National H.I.R.E. (Helping Individuals with criminal records Re-enter through Employment) Network, a project of the Legal Action Center, is a national clearinghouse for information and an advocate for policy change on employment issues facing people with criminal records.[102]  Directed by Debbie Mukamal, the Network publishes a wide range of practical resources and offers technical assistance to local agencies working to improve the employment prospects for people with criminal records.[103]  It has also compiled an extensive list of advocates, community-based organizations, and policymakers in each state working on these employment issues.[104]

Increase Your Capacity by Seeking Organizational Partners

Of course, realistically, collaboration is key.  It has become apparent to many in the criminal justice field that to provide truly effective assistance to people who encounter the criminal justice system, those services must be integrated.  Despite the many barriers to institutionalizing comprehensive services mentioned above, similar results can be obtained through the active coordination of services among criminal justice providers. 

Statewide or regional efforts have begun that will promote better service delivery and policy making around invisible punishments.  Most of these efforts have been inspired by the pressures and problems arising around “reentry” – often defined as the process of reintegrating people into their communities as they are released from terms of incarceration.  Reentry is a useful term for a complex set of issues that has gained well-deserved prominence in recent years, but it can be limiting.  Too often policymakers and advocates focus only on the backend process of discharge planning and release from custody.[105] 

Reentry, however, actually implicates all of the invisible punishments that this article argues are so critical to defense work.  I submit that we must redefine reentry as a process that begins at arrest and continues through community reintegration.  Defense advocates and clients must plan for reentry from the moment of arrest, implementing strategies of supportive interventions from bail applications, to plea negotiations, to pre-sentencing reports.

For example, the New Jersey Institute for Social Justice convened the New Jersey Reentry Roundtable (NJRR), “a year-long initiative gathering policy makers, researchers, service providers and others to assess and develop a strategic response to state, local and individual challenges” posed by the reentry of people released from prison in New Jersey.[106]  Directed by Nancy Fishman, the project is now launching a three-year comprehensive reentry initiative focusing on policy research and advocacy, communications, and the development of a demonstration reentry project.  The project will also work closely with defenders to implement strategies to address reentry problems at the front end.

 [Maryland?]

 In New York, a coalition of organizations is building Reentry Net, a collaborative network and online training and support center for individuals and organizations in New York State that advocate for people who have criminal records or are reentering the community after incarceration.[107]  An intensive six-month planning process involved over seventy participants from public defenders, social services agencies, civil legal services organizations, and systemic reform groups throughout the state.  The project will network, train, and support organizations and advocates working with criminal defendants, persons with criminal records, and those reentering their communities after jail or prison.  It will also provide materials to affected communities, family members, and people with criminal records to link them with services and provide them with strategies for overcoming these barriers.  At the most fundamental level, Reentry Net seeks to promote better outcomes for the Reentry Community by improving individual advocacy, strengthening collaborations, and empowering the community itself.  Reentry Net will link all groups providing services from arrest through release, promoting continuity of care and increasing capacity through collaboration and access to resources.[108] 

These initiatives illustrate how defenders can increase their capacity by dedicating some internal resources and seeking organizational partners.[109]  Many offices have designated certain attorneys as “in-house counsel” charged with developing expertise in specific areas of hidden sanctions.[110]  This model has proven particularly successful with complicated areas of law such as immigration.  For most hidden consequences, a defense office could select volunteer law interns for the summer for the express purpose of collecting information on relevant invisible punishments.  Much of this work could even be done off-site during the school year.  Law school clinics can also provide invaluable resources in collecting this information and modeling behavior.[111]  NYU Law School and now Maryland Law School have Reentry clinics dedicated to representing clients suffering from hidden sanctions after release from incarceration.[112]

            The most obvious target for collaboration, but sometimes the most problematic, is the local civil legal services office.[113]  Local legal services offices are the repositories for the best available information on hidden punishments in the broad range of traditional poverty law – housing, public benefits, disability, family, consumer, health, and HIV/AIDS.  Because of the complexity of the law and funding pressures, most legal services offices have become stratified into practice areas reflecting the topics just mentioned.[114]  Their knowledge of invisible punishments is therefore similarly fragmented, but it offers a rich source of expertise upon which to rely, with proper collaborative effort.[115]

            An entire spectrum of collaboration is possible.  As a way of opening the conversation, defenders should organize a roundtable meeting with the local legal services office.  Share the scale of services that your offices provide and talk about your clients’ greatest needs.  Work to convince the legal services organization that you share the same client population. 

The legal services office will have a wealth of information useful to defense attorneys and their clients.  Legal services groups invariably publish a large set of client- and community- oriented materials ranging from pamphlets to pro se guides.  At a minimum, defenders should stock their lobby with the full set of client education materials.  See if the organization will write new pamphlets about hidden sanctions most relevant to the community. 

Defense attorneys should also take advantage of legal services CLE’s on poverty law issues that arise in defense practice – welfare law, disability, housing, civil rights.  In some criminal cases, civil legal issues determine the outcome.  For example, when a client is charged with public benefits or subsidized housing fraud, knowledge of the administrative process is critical to defending the case.  A legal services specialist will know all relevant documents and budgeting printouts produced by the administrative agency and will know how to obtain them outside of the criminal discovery process.  These documents are often nearly indecipherable without training, but notations from workers and housing assistants can be critical in undermining fraudulent intent.  Moreover, these administrative agencies frequently make mistakes in calculating eligibility and recoupment amounts.  Criminal cases are no different, and prosecutors rely on the administrative calculation.  The client may also have been entitled to a rent abatement because of bad conditions in the apartment.  By recalculating with the help of a legal services attorney or training, a defense attorney can trim the amount of claimed loss, lowering restitution amounts and potentially reducing the case from a felony to a misdemeanor.[116] 

These trainings are also wonderful networking opportunities upon which to build collaborative relationships.  Defenders should try to develop a formal referral system from their office to the legal services office.  Such an arrangement will benefit everyone involved – because defenders are often the first to hear of legal problems, the legal services office can intervene much earlier and more effectively than if the client waits until the problem reaches crisis proportions.  Defense offices should explore whether the legal services office will designate the defender as an outreach site for intake or brief advice.  Legal services attorneys or paralegals could staff a table in the defender office at designated times.  If no institutional public defender exists, the legal services office could staff a table at the criminal courthouse.[117]

These collaborative efforts serve to build trust with clients and their communities.  These efforts, however, are not without their challenges.  Most legal services offices receive federal funding from the Legal Services Corporation (LSC).  Congress has increasingly placed severe restrictions on all services of organizations that receive any LSC funding.[118]  Many of these restrictions have the potential of limiting the services available for people affected by invisible punishments.  For example, the Code of Federal Regulations prohibits LSC-funded groups from representing clients in criminal proceedings[119] or habeas corpus collateral attacks on criminal convictions,[120] from representing any currently incarcerated person on most civil matters,[121] from representing clients in certain drug-related eviction proceedings,[122] from representing most non-citizens,[123] and from conducting training programs for restricted activities.[124]

When discussing collaborative efforts with LSC-funded organizations, defenders should be aware of these restrictions and educate the organizations about the wide range of services still possible.[125]  Permitted activities include:

1.         Sealing or expunging criminal record.

2.         Seeking a pardon.

3.         Seeking a certificate of rehabilitation.

4.         Defending the eviction of someone charged with a drug crime where the charges were dismissed or concluded in a non-criminal disposition.

5.         Reinstating benefits after incarceration, or challenging a recoupment based on a period of incarceration.

6.         Representing the child of an incarcerated adult to enable visitation to her parent.[126]

 In fact, many barriers to representation can be avoided by representing the family affected by hidden sanctions rather than the individual with the criminal record.

 Conclusion

            The criminal justice system inflicts harm on all it touches.  The invisible punishments can be far-reaching and debilitating, sentencing an ever-increasing population to life on the margins.  The fateful gap between social problems and social services is a catalyst for entry into the criminal justice system, and the hidden sanctions imposed all but ensure that people never break free. 

Defense attorneys occupy a unique position in the fight to break this cycle.  By learning the hidden punishments that result from criminal proceedings and incorporating that knowledge into their advocacy strategies, they can better serve their clients and their families.  They can obtain improved outcomes in criminal cases and forestall the “civil death” now imposed in practice by involvement with the criminal justice system.  Many resources now exist to aid in this endeavor, and the need is great.  We must seize these opportunities to break the cycle of punitive measures and unforeseen consequences that prevent people who live in poverty from establishing any sense of stability.
 

Useful Resources

Practice Guides and Materials

·  Defending Immigrants Partnership (NLADA):  http://www.nlada.org/Defender/Defender_Immigrants (extensive materials). 

·  Legal Action Center Publications (available at www.hirenetwork.org/publications.html)

       After Prison: Roadblocks to Reentry – A Report on State Legal Barriers Facing People with Criminal Records (www.lac.org/roadblocks.html)

How to Get and Clean up Your Rap Sheet (for CA, IL, NY, PA, and VA)

       Employment Discrimination and What to Do About It: A Guide for Counselors of Individuals with Criminal Records or in Recovery from Alcohol and Drug Dependence

(for CA, IL, NY, PA, and VA)

·  McGregor Smyth, The Consequences of Criminal Proceedings in New York State: A Guide for Criminal Defense Attorneys and Other Advocates for Persons with Criminal Records (September 2004) (contact The Bronx Defenders for a copy). 

·  U.S. Dept. of Justice, Office of the Pardon Attorney, Federal Statutes Imposing Collateral Consequences Upon Conviction (2000) (available at www.usdoj.gov/pardon/collateral_consequences.pdf).

·  U.S. Dept. of Justice, Office of the Pardon Attorney, Civil Disabilities of Convicted Felons: A State-by-State Survey (October 1996) (available at www.usdoj.gov/pardon/forms/state_survey.pdf).

Reference Materials

·  Nkechi Taifa, Roadblocked Re-Entry: The Prison After Imprisonment (November 13, 2002).

·  Jeremy Travis, Amy L. Solomon, & Michelle Waul, From Prison to Home: The Dimensions and Consequences of Prisoner Reentry (The Urban Institute June 2001) (http://www.urban.org/pdfs/from_prison_to_home.pdf)

·  CLASP and Community Legal Services (Amy E. Hirsch, Sharon M. Dietrich, Rue Landau, Peter D. Schneider, Irv Ackelsberg, Judith Bernstein-Baker, & Joseph Hohenstein), Every Door Closed: Barriers Facing Parents With Criminal Records (2002). 

       ·  Fact Sheet Series.

·  McGregor Smyth, Bridging the Gap: A Practical Guide to Civil-Defender Collaboration, 37 Clearinghouse Rev. 56 (May-June 2003) (available at http://www.nlada.org/Training/Training_Library).

·  Cynthia Works, Reentry—the Tie That Binds Civil Legal Aid Attorneys and Public Defenders, 37 Clearinghouse Rev. 328 (Sept.-Oct. 2003) (available at http://www.nlada.org/Training/Training_Library).