Should Prosecutors Consider Collateral Consequences?

Prosecutors have wide discretion to decide how to charge defendants. In exercising that discretion, a prosecutor certainly may consider the sentence associated with each possible charge, and may choose to pursue the charge or charges that is most likely to result in the outcome that the prosecutor sees as just. But the criminal sentence may not be the only outcome of a criminal case. A variety of collateral consequences may be imposed by law, such a change in immigration status, a requirement to register as a sex offender, or loss of professional licensure. Other consequences may also follow certain convictions, such as loss of employment or housing. May prosecutors consider collateral consequences when making charging decisions and when evaluating possible plea bargains? Should they do so? Must they?

The question has made headlines recently, in the following context: the Trump administration is taking a harder line on immigration than previous administrations. The Department of Homeland Security issued a memorandum earlier this year making it a priority to deport removable aliens who have been charged with or convicted of any criminal offense. Some state prosecutors have instructed their staffs to consider the immigration consequences to the defendant when determining the appropriate disposition of minor criminal cases. For example, this article discusses actions taken by the chief prosecutors in Baltimore and Brooklyn. The latter warned of the potential for collateral consequences that are “unintended,” “severe,” “unfair,” and “disproportionate.” U.S. Attorney General Jeff Sessions has responded by stating that he is baffled by the idea that a prosecutor would give “special treatment to illegal aliens” as a result of concerns about immigration consequences.

Sessions’ bafflement may be based more in a belief that the specific collateral consequences in question are just and appropriate than in any sense that it is categorically improper for prosecutors to consider collateral consequences at all. In practice, it is routine for prosecutors and defense lawyers to consider and discuss, for example, whether a case involving limited inappropriate touching is best resolved with a plea to an offense that does not require sex offender registration, or whether a misdemeanor conviction rather than a felony will enable a defendant to keep his job. This article voices the perspective that “[o]ur primary duty as prosecutors is to ensure justice and protect the public from crime. In keeping with that mission, we must also consider the collateral consequences of the convictions we obtain to ensure that justice is achieved.”

For whatever it may be worth, the U.S. Attorneys’ Manual codifies the view that considering collateral consequences is appropriate. In section 9-27.420, for example, the Manual states that in plea negotiations, prosecutors should consider “[t]he probable sentence or other consequences if the defendant is convicted.” The Manual is even clearer when discussing organizational defendants: section 9-28.1100 states that “[p]rosecutors may consider the collateral consequences of a corporate criminal conviction or indictment in determining whether to charge the corporation with a criminal offense and how to resolve corporate criminal cases.”

Different perspectives are possible. This article argues that prosecutors should not be required to take collateral consequences into account, because collateral consequences are not necessarily within prosecutors’ expertise, and because collateral consequences represent a legislative judgment about the appropriate sanction for certain conduct that prosecutors should not second guess.

It has been awhile since we have had a poll on the blog, so I’ll put it to readers:

Of course, if you have more to say about this subject than can be captured in a simple “yes” or “no,” feel free to post a comment. More information about the wide range of potential collateral consequences of North Carolina criminal convictions is available through the Collateral Consequences Assessment Tool, C-CAT.

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