Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
Effective Sept. 1, 2011, Texas Health and Safety Code Sec. 773.0614, dealing with ground for revocation of the license of emergency medical technicians, was amended to change just a couple of words. The law was changed to mandate revocation if the certificate holder has been convicted of a serious offense including those requiring sex offender registration. Previously, revocation was mandated only if the person was convicted after licensure.
An article published in the Austin American-Statesmen on Jan. 16, 2016,1 related several instances in which this change in the law caused unjust results. One emergency medical technician (EMT) committed a sexual offense at age 16. He successfully served his sentence of probation and at age 31 became an EMT. He landed a good job and had a stellar work record. Under the new law, his license was revoked. He now remains unemployed.
The newspaper article told of two more EMTs who suffered the same fate, losing their licenses after 16 and 17 years, both with unblemished records of service. Another, facing revocation of his license after five years of service, initiated an administrative appeal. An administrative law judge, after considering evidence including a psychological evaluation, concluded that the licensee posed no risk. However, the judge concluded that the statute left no alternative but to order revocation of the license.
The sponsor of the bill changing the law, State Rep. Debbie Riddle, acknowledged, “There may be instances where EMTs paid their debt to society and could go back and be just fine.” However, she argued that some professions warrant a lifetime ban because they “serve citizens at their most vulnerable.” She reasoned that no matter how slight the chance is that members of certain professions will reoffend, the risk is too great.
This legislator and her colleagues at the state capitol effectively sentenced these EMTs to an exclusion for life from their chosen profession, in which all had labored for years with spotless records. The lawmakers did this without ever laying eyes on the EMTs, considering a presentence report, reviewing a psychological evaluation, considering the circumstances of their offenses, or making any kind of individual assessment as to whether the sanction was needed. This is but one example of the collateral effects of a criminal conviction. In this instance, the consequences are devastating to the individual’s ability to earn a living and support a family. The punishment will be imposed even though no judge or jury has ever decided it to be just and despite it not being the law at the time of the conduct or conviction.
Statutory prohibitions regarding licensure, voting rights, employment in specific fields, firearms possession and the like are often mandatory, meaning that they are imposed by operation of law rather than by the court in which a conviction occurs. As with the example cited above, sometimes the consequences are added long after the conduct occurred and the sentence served. My own informal discussions with judges revealed that most are not fully aware of the additional penalties imposed by operation of law after the defendant leaves the courtroom.2 But, how could they know, or how could we, the defense attorneys, know about an ever-changing tangle of statutes and regulations, some of which lawmakers add after the criminal case is over?
In May 2014, NACDL and the Foundation for Criminal Justice released a report titled Collateral Damage: America’s Failure to Forgive or Forget in the War on Crime – A Roadmap to Restore Rights and Status After Arrest or Conviction.3 The report was the product of NACDL’s Task Force on Restoration of Rights and Status After Conviction. The task force conducted public hearings in six cities in diverse regions of the country and heard from over 150 witnesses. Witnesses informed the task force members about the real life effects that these legislatively or administratively imposed collateral consequences have on individuals who have been through the criminal justice system. In many instances the adverse consequences for relatively minor offenses will have a serious effect for the reminder of the individual’s life.
Before I go on, I pause to commend this task force for its hard work and the quality of its work product. The various task forces assembled by NACDL over the past few years to undertake major investigation and reporting efforts have had a substantial impact. They have served as the authoritative voice of the criminal defense bar in important policy discussions and, in many instances have had a discernable impact on legislation and rule-making bodies. Currently, the Task Force on Indigent Defense is providing important input to the CJA Study Committee convened by Chief Justice Roberts to study the current state of federal indigent defense and make recommendations for change. The work of these task forces is an important activity of NACDL.
The Task Force on Restoration of Rights and Status After Conviction made 10 recommendations concerning collateral consequences reform. Here I’m going to discuss only recommendations two and four.
II. All mandatory collateral consequences should be disfavored and are never appropriate unless substantially justified by the specific conduct.
IV. Full restoration of rights and status should be available to convicted individuals upon completion of sentence.
Collateral consequences imposed without regard to whether they are justified by the conduct of the specific offender and without an opportunity to ever terminate their effect even if the offender demonstrates rehabilitation represent a system out of step with its purpose. On the federal level, the statute governing the imposition of sentence instructs the court to “impose a sentence sufficient, but not greater than necessary,” to satisfy a list of factors that address deterrence, punishment, protection of the public, and the rehabilitation of the offender.4 My home state, Texas, has codified a similar list of goals for its penal laws.5 I’m sure, without undertaking a survey, that most states have some similar statement of purpose for their criminal justice systems.
Imposing a collateral consequence without regard to whether the offense conduct calls for it does not relate to those purposes. It is punishment for punishment’s sake, or for the sake of appearances. Perhaps it is punishment for a purpose altogether unrelated to criminal justice. Restoration of voting rights in Virginia has been met with opposition from some claiming that the move amounts to a veiled effort to win votes for Democrats, since those deprived of their voting rights by felony convictions are disproportionately African American who are statistically more likely to vote Democrat.6 Of course, the converse argument can be made that denying voting rights to those convicted of a felony would benefit Republican candidates.
There is no sound argument for the imposition of collateral consequences that are not shown to be related to the offense conduct and without an opportunity to remove them if the connection with that conduct is later shown to have dissipated. Fortunately, through the efforts of organizations like NACDL to educate the public and policy makers on the unjust application of collateral consequences, there appears to be movement toward rectifying the situation. The Collateral Consequences Resource Center, an organization established to promote public discussion of the collateral consequences of conviction, chronicles on its website7 recent advances made to remove or modify mandatory extrajudicial sanctions. The site reports such measures as the Department of Education urging colleges and universities to reconsider the use of criminal sanctions on admissions applications; the actions of several states to “ban the box” in private employment, and, of course, restoration of voting rights in Virginia for individuals with felony convictions.
Defense lawyers face an almost impossible task of determining the full impact of conviction on each client’s future. As we’ve seen with Padilla v. Kentucky,8 effective representation involves determining certain consequences of a conviction. However, we obviously cannot predict what sanctions future legislatures or rule-making bodies will impose retrospectively. In an effort to provide criminal defense practitioners with resources to help identify, avoid and challenge collateral consequences of criminal convictions, NACDL has co-published with Thompson Reuters the comprehensive resource, Collateral Consequences of Criminal Convictions: Law, Policy and Practice, (2016 ed.) by Margaret Colgate Love, Cecelia Klingele, and Jenny Roberts.9
It is encouraging to see the efforts being made by the federal and state governments to bring some degree of sanity and reason to the problems caused by arbitrary imposition of collateral punishment as a result of an individual’s involvement with the criminal justice system. The recent legislation in Texas, however, demonstrates that we have a long struggle ahead.
Notes
- E. Dexheimer, Even with Years of Experience, EMTs Lose License to New Law, Austin American-Statesman, Jan. 16, 2016.
- At least one judge recognizes the significance of collateral consequences. After receiving a presentence report containing no reference to collateral consequences, Senior District Judge Frederic Block instructed counsel to submit in writing which collateral consequences would likely be applicable to the defendant’s case. United States v. Nesbeth, No. 15-CR-18 (FB), 2016 WL 3022073 (E.D.N.Y. May 24, 2016).
- http://www.nacdl.org/reports.
- 18 U.S.C. § 3553.
- See Tex. Penal Code Sec. 1.02.
- See S. Stolberg & E. Eckholm, Virginia Governor Restores Voting Rights to Felons, N.Y. Times, April 22, 2016.
- http://ccresourcecenter.org.
- 533 U.S. 289 (2010).
- http://www.nacdl.org/nacdlpress.
About the Author
A certified criminal law specialist, E.G. “Gerry” Morris has been practicing criminal defense law for 37 years. His practice focuses primarily on trials in state and federal courts, but he also handles state and federal appeals as well as post-judgment actions. He is a frequent lecturer at continuing legal education programs.
E. G. Morris
Law Office of E.G. Morris
2202 Lake Austin Blvd.
Austin, TX 78703
512-478-0758
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egm@egmlaw.com