More Than Civil Death: Considering Collateral Consequences in Federal Sentencing

• Publication year: 2017
• Author: Kaitlin D. Beck

MORE THAN CIVIL DEATH: CONSIDERING COLLATERAL CONSEQUENCES IN FEDERAL SENTENCING

Kaitlin D. Beck

The Editors of the Criminal Law Journal take great pride in publishing the following article, which was authored by Kaitlin D. Beck, a third year law student at The University of Chicago School of Law. Ms. Beck won the Grand Prize in the 2016-2017 Marshall Schulman Competition for Student Papers in the Criminal Law and/or Criminal Procedure, sponsored by the Criminal Law Section of the State Bar.

The judges of the writing competition were impressed by the quality and caliber of entries in this year's competition and offer their gratitude and encouragement to those students, from law schools throughout the country, who submitted articles. All law students are cordially invited to participate in the 2017-2018 Competition.

Introduction

Chevelle Nesbeth is an "excellent person, who is quiet, nice, caring, and who is both very loving and very loved."¹ Born in Kingston, Jamaica, Ms. Nesbeth immigrated to the United States when she was thirteen years old to live with her mother in New Haven, Connecticut.² Money was tight in Ms. Nesbeth's home growing up—her family drew Food Stamp benefits for a time—and Ms. Nesbeth began working in her teens.³ It may have been her work counseling low-income children, or her work at a children's spa, or her seasonal work at the parks service that inspired her to enroll at Southern Connecticut State University in 2013 and study education, with the hopes of one day becoming a school principal.⁴

In 2013, Ms. Nesbeth visited Jamaica "at the behest of a boyfriend[.] [S]he was given two suitcases by friends, who had purchased her return airline ticket, and was asked to bring them to an individual upon her arrival to the United States."⁵ 602 grams of cocaine were packed into the suitcase handles.⁶

For her transgression, and before she had even been sentenced, Ms. Nesbeth faced a significant range of collateral consequences under federal law, including: ineligibility for student loans, ineligibility for certain professional licenses (including those required to practice child care); ineligibility for federally assisted housing or Food Stamp benefits; suspension of her driver's license; and possible ineligibility for employment in the child care industry due to the frequency of background checks for criminal convictions in that field.⁷ Connecticut State Law would also deny her the right to vote, to serve on a jury, or "to adopt a child or serve as a foster parent" for some period of years. The State might withhold her ability to earn her teaching certificate indefinitely.⁸ No wonder that one scholar argues that the punishment once known as "civil death," once defunct, has reemerged surreptitiously in recent history.⁹

The Honorable Frederic Block opened his sentencing opinion in this way:

[F]rom my research and experience over two decades as a district judge, sufficient attention has not been paid at sentencing by me and lawyers—both prosecutors and defense counsel—as well as by the Probation Department in rendering its presentence reports, to the collateral consequences facing a convicted defendant. And I believe that judges should consider such consequences in rendering a lawful sentence.

Other district court judges, like Judge Block, have recognized circumstances under which a criminal defendant, even before a sentence is rendered, has been "sufficiently punished," making incarceration less necessary or even unnecessary "to render a punishment that is sufficient but not greater than necessary to meet the ends of sentencing."¹⁰ As Judge Block also recognized, there is a circuit split on the issue.¹¹ A minority of circuits have rejected the use of collateral consequences in sentencing determinations under the advisory Federal Sentencing Guidelines,¹² and have advanced compelling arguments for doing so.¹³

This Comment attempts to distill the rationale for permitting the consideration of collateral consequences provided by Judge Block's colleagues in the First, Second, Seventh, Ninth, and DC Circuits. This Comment also sketches out novel arguments for rejecting collateral consequences. The Sixth Circuit has most adeptly articulated these arguments, and the Eleventh Circuit has explicitly adopted them. Finally, this Comment will conclude that the arguments of the circuit minority are insufficient to justify limiting the sentencing courts' discretion under the advisory Guidelines. As Judge Block's opinion begins to suggest, and as this Comment will demonstrate, the position of the majority better comports with the text of § 3553 of the Federal Sentencing Guidelines. The minority's limiting distinction between the collateral consequences "of prosecution and conviction" and "of sentencing" lacks a firm foothold in Supreme Court precedent. Finally, fairness considerations—while sympathetic—have been considered and rejected by the Supreme Court in analogous cases as an insufficient basis for imposing a categorical ban on the consideration of collateral consequences.

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This Comment proceeds in three Parts. In Part I, this Comment will provide an expansive definition of collateral consequences and explain why a sentencing judge may choose to consider them. As the reader will see, today's convicted person faces more than civil death. Of course, the sentencing court is always free to consider, but ultimately reject, evidence of collateral consequences presented by the convicted person at sentencing. The purpose of this Comment is not to define when, or to what degree, collateral consequences should weigh in the sentencing equation. Rather, this Comment seeks to answer whether such a determination is within the proper discretion of the sentencing court—not how, but whether a sentencing court may consider collateral consequences at all.

In Part II, this Comment will lay out the different approaches in the circuits—the majority, which says a sentencing court may consider collateral consequences, and the minority, which says it may not. Part III will explore the arguments from the minority of circuits in support of its interdiction against the consideration of collateral consequences. Ultimately, this Comment concludes that these arguments provide an insufficient legal basis for divesting sentencing authority—the authority to consider collateral consequences—from the sentencing courts.

I. Why Consider Collateral Consequences?

Black's Law Dictionary defines a "collateral consequence" as "the indirect implication of a criminal conviction . . . [a] penalty for committing a crime, in addition to the penalty included in the criminal sentence."¹⁴ The definition lists a few types of collateral consequences such as effects on "the defendant's immigration status, property forfeitures, and civil-litigation posture" ¹⁵ but this sample hardly scratches the surface. Scholars have noted that the number of potentially applicable collateral consequences is on the rise, and—because of both the difficulty of identifying them and the low probability that defendants are fully aware of them—have referred to them as "invisible punishments,"¹⁶ "secret sentence[s],"¹⁷ and "hidden penalties."¹⁸ This Part of the Comment will first describe three types of collateral consequences—which can roughly be categorized as "civil consequences," "secondary consequences," and "third-party consequences." This Part then explains why judges may decide to consider collateral consequences when sentencing convicted people, and offers the recommendations of prominent national legal organizations in favor of such consideration.

A. What Are Collateral Consequences?

The most commonly recognized and discussed types of collateral consequences are formal, civil consequences imposed by the government, such as the ones mentioned in Black's Law Dictionary.¹⁹ Convicted people are commonly deprived of the rights of citizenship,²⁰ a practice which pre-dated and persisted into the early American legal system as a form of punishment known then as "civil death."²¹ More than that, convicted people today may also be denied federal benefits based on economic need,²² or subjected to strict regulations of their movement.²³ Perhaps most notably, conviction has serious formal consequences on a convicted person's employment. In some states, licensing boards can withhold or revoke professional licenses based on criminal convictions.²⁴ State constitutions may prohibit people with criminal convictions from holding public office, or allow discrimination in hiring for caregivers, educators, or law enforcement personnel.²⁵

In addition to formal, civil penalties, convicted people may also experience informal, secondary consequences as a result of their convictions. Certain convicted people may face a higher risk of abuse in prison,²⁶ while "[e]very convicted felon suffers the indignity and ill-repute associated with a criminal conviction."²⁷ Employment consequences abound for even those convicted people who do not work in a field subject to licensure or other state regulation. After an incarcerated person is released, for example, she may face difficulties finding employment, as many private employers enquire about criminal history very early in the hiring process.²⁸ While many secondary collateral consequences are socially imposed, some are caused more directly by the legal process—the prosecution, conviction, and sentencing of an individual. Prosecution and conviction can be psychologically punishing.²⁹ Incarceration may lead to serious health complications for incarcerated people with chronic illnesses and substandard access to medical care.³⁰

Convictions also affect individuals besides the convicted person. A conviction may have third-party consequences for the convicted person's family and community. A custodial sentence could spell ruin for the convicted person's family finances or business, and—if the convicted person is an integral part of a business—perhaps threaten the employment of...