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Unwanted attachments: Criminal defendants face consequences beyond the sentence

In the fight game, the old adage goes something like this: The punch that hurts you the most is the one you don’t see coming.
In the legal realm, the same could be said for the consequences of being convicted of—or even arrested for—committing a crime. The fines, probation and jail time associated with a criminal conviction or the stigma of an arrest can be staggering; the long-term struggle in finding adequate housing and employment, for example, can serve as the coup de grace.
Harry Dest, chief public defender for the 16th Circuit, has been in this game for a long time, defending criminally charged clients for 26 years. Over the last decade or two, his communication with clients has evolved in an era of more arrests, changing laws, selective employers and growing technology.
“Clients need to know all of the ramifications,” he said. “I don’t know where the line’s drawn as far as advising them of every potential consequence—I know what case law says with respect to the ethical duty of an attorney—but you have to try to give them as much information as you possibly can.”
In recent years, the ABA has stepped up its efforts to help attorneys to better understand the consequences and make sure clients understand them.
We need to talk
Collateral consequences—the adverse legal effects not doled out by a judge but automatically triggered by a conviction—have been around since the Colonial times. But today, more than ever, lawyers find themselves engaging in deep heart-to-heart conversations with clients about what a conviction means.
A charge that carries little or no jail time, maybe a fine and community service, can have lifelong repercussions that oftentimes aren’t spelled out in court, because they’re not imposed by the court.
“The fact of the matter is, when I was a solicitor in Richland County back in the ‘90s, nobody ever worried about collateral consequences,” said Columbia defense attorney Richard “Dick” Harpootlian. “In the old days, if you got a criminal history in Columbia, you may move to Greenville and get away from that background. That doesn’t happen now; you can’t get away from it. It follows you everywhere.”
That’s because these days, news reports and arrest records are just a click or two away from anyone with a computer and an Internet connection. Mugshots and arrest information are often online and available to the public before an arrestee leaves the booking area. Even in scenarios in which records—including mugshots, fingerprints, booking reports and electronic records—are supposed to be destroyed, traces often live on in cyberspace.
“Information is so much more accessible than it was 20 years ago,” Harpootlian said. “I’m much more explicit about what this could mean to your life if you get a conviction.”
And while there’s a presumption of innocence until a court says otherwise, Durham, North Carolina, attorney T. Greg Doucette said that an arrest that doesn’t lead to a conviction can still become a huge collateral consequence that clients need to be made aware of.
“Especially if they end up having their mugshots taken or get fingerprinted,” Doucette said. “What’ll happen is these websites out there will get this public data from the jails and it gets published a million and one times down the stream.”
And, of course, the jail’s database itself is public record. Since booking photos are taken and published typically before a defendant has had a bond hearing—much less a trial—it stands to reason that their reputations have been damaged long before they’ve had their day in court.
“It’s like an albatross around their neck, so even though you’re innocent until proven guilty … if it’s time to, say, get a job and the employer Googles you, you’re stuck and might not even get an interview.”
The ABA’s position  
According to the National Inventory of the Collateral Consequences of Conviction, an online database launched in 2014 by the American Bar Association’s Criminal Justice Section, millions of Americans are “consigned to a kind of legal limbo because at one point in their past they committed a crime.”
When the website first launched, the ABA’s then-president William C. Hubbard, of Nelson, Mullins, Riley & Scarborough in Columbia, said that while some collateral consequences serve “meaningful public safety goals,” many only limit the ex-offender’s ability to reintegrate into society.
“This, in turn, imposes high social and economic costs including increased crime, increased victimization, increased family distress, and increased pressure on already strained state and municipal budgets,” Hubbard said.
According to the ABA, part of the site’s mission was to help attorneys provide more informed counsel to clients. For South Carolina, the site lists 72 pages of collateral consequences associated with various crimes; North Carolina has 102 pages.
Maria Gutierrez, a public relations and policy specialist with the ABA’s communications and media relations division, said that the ABA publishes recommended guidelines on collateral sanctions in its manual, Collateral Sanctions and Discretionary Disqualification of Convicted Persons.
The manual calls the sanctions a “half-hidden network of legal barriers” and suggests that judges should consider collateral consequences a defendant will face, prior to sentencing, and that jurisdictions should codify state and federal laws that apply to each crime.
It also recommends that procedures be in place to ensure that a defendant has been made aware of collateral consequences prior to the court accepting his guilty plea.
The ABA acknowledges that leaving all the advisement up to the court could be time consuming and, if given at the time of the plea, too late to be of much use to a defendant deciding whether to plead guilty and to what charges.
“In this regard, Standard 14-3.2(f) provides that defense counsel must, ‘to the extent possible,’ determine and advise the defendant of ‘possible collateral consequences’ in advance of the entry of any plea,” the guidance reads.
It seems that many lawyers practicing today have gotten the memo.
A need to know
Durham’s Doucette has been practicing law for only four years, but said that he learned what questions to ask from a more experienced mentor who delved into his clients’ backgrounds and aspirations before advising them.
A large percentage of those represented by Doucette have some things in common: They are young college students facing relatively minor (to the extent that any criminal charge is minor) charges, often involving marijuana or theft. Though his clients are generally not facing life in prison, Doucette said it is imperative that they know what might await them after the fines are paid and the community service completed, especially if there are subsequent arrests.
“If I’ve got a young person who wants to become a doctor or a lawyer and they’ve got a severe drug habit, that’s something that we’ve got to get addressed,” Doucette said. “Theft is considered a crime of moral turpitude and basically means you’re a liar and can’t be trusted. This is a tremendous problem when you’re trying to get a job.”
Harpootlian agreed.
“At the end of the day, with the workforce and with unemployment high, employers have their pick,” Harpootlian said. “And are they going to take somebody with a felony conviction or even a … misdemeanor over someone who’s equally qualified and doesn’t have those? Why even fool with that; why not just go on the next guy or next woman?”
Harpootlian added that not only does a defendant have to worry about securing the next job, but potentially losing the one he or she has.
One discussion he said he finds himself having regards the loss of a professional license.
An arrest can jeopardize an individual’s freedom to do everything from drive a commercial vehicle to operate a day care to practice law and medicine.
Even if the allegations aren’t proven beyond a reasonable doubt and the underlying actions don’t rise to the level of a crime, Harpootlian said, the accusations are sometimes enough to spell disaster.
“That’s one of the things you’re looking at on the front end—if he or she is arrested, in many instances … the consequence is that their license is suspended even if they’re acquitted,” he said. “So we try to diffuse it on the front end before they’re even arrested.”
Of course that isn’t always possible, since not everyone has an opportunity to seek counsel before being arrested.
Clear as mud
With more employers performing background checks than ever before, many people understand that an arrest or conviction is likely to stymie their job search. So much so that reentry initiatives have grown in recent years to an all-time high in an effort to mitigate the long-lasting consequences of a rap sheet.
But not every sanction is so evident, Harpootlian said.
“For instance, if you plead to criminal domestic violence (a misdemeanor), you’re not allowed to possess a gun under federal law even though it carries less than a year (in jail),” Harpootlian said. “Likewise, in state court there are a dozen or so misdemeanors that carry more than a year, so you think you’re pleading to a misdemeanor but the collateral consequence is again that you can’t possess a weapon.”
As with employment restrictions, the growingly wise populace often understands that forfeiting their Second Amendment rights is part and parcel of certain criminal convictions. What they may not know, and what today’s attorneys are tasked with telling them, is that they may also lose welfare benefits, become ineligible for student loans, be deemed unfit to vote and run for public office, and become subject to deportation.
It’s a lawyer’s duty to advise his or her client, but that doesn’t mean their advice is always heeded.
From Harpootlian’s perspective, many of his “routine clients” are more concerned with what they’ll be facing when the gavel strikes.
“They’re trapped and wondering how to get out,” he said. “But professionals do; they’re very concerned with collateral consequences and some choose trial rather than taking a plea, depending on how dramatic and immediate the consequence is.”
Dest, the York County public defender, agreed with that, adding that while some of his clients are “very concerned” about losing a license or scholarship, others are more worried about escaping a particular sentencing range.
“When you’re dealing with someone facing a murder charge, the least of their concerns is whether or not they will ever be able to own a firearm,” Dest said. “They just want to salvage their life.”
The strategy appears to be to advocate and release. And sometimes, advocate again.
“I’ve got to make clear to all of them that it’s ultimately their decision,” Doucette said. “What I can do is give them the repercussions of what’s going to happen based on an outcome, and the odds of that outcome happening based on the decision they make.”
Harpootlian and Doucette also talked about post-trial or plea methods that can erase collateral consequences, such as pardons, expungements and the sealing of records. Those resolutions, of course, are available only to certain offenders charged with certain crimes, but are another avenue by which attorneys can champion their clientele.
Doucette is currently representing a young man whose aspirations include becoming a U.S. Marine. Through advice from a Marine officer and the research of available legal relief, Doucette thinks he has found a way, through expungement, for this client to sidestep a usually fatal collateral consequence.
“I stress that on the front end, if they’re eligible for expungement, and ask them if they want to try that,” Doucette said. “Get rid of it by expungement and not ever break the law again.”
Follow Heath Hamacher on Twitter @SCLWHamacher

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