Punishing Felons Twice: Collateral Consequences of a Felony Conviction

A felony conviction can have many consequences. People tend to think of the consequences a conviction carries in terms of incarceration or community control (the new term for probation). This is not surprising given that attorneys, both prosecutors and defense, often spend a great deal of time discussing or negotiating the more obvious, immediate consequences of convictions. However, there are a host of other consequences that a felony conviction carries that are often overlooked. These collateral consequences can often be just as punishing as a term of imprisonment.

Last week, a federal judge in Brooklyn took the unusual step of fashioning the sentence he imposed around the collateral consequences of a conviction. The defendant in the case was convicted of importation and possession of cocaine with intent to distribute. She had been arrested at the airport with a suitcase containing the drugs and maintained throughout the case that friends had given her the suitcase without telling her about the drugs. The United States Sentencing Guidelines (U.S.S.G.) recommended a term of imprisonment of 33-41 months. However, judges in these cases have the ability to depart downwards from the recommended sentences based on mitigating factors contained in 18 U.S.S.G. 3553(a). In this case, Judge Fredric Block factored in the collateral consequences of a felony conviction when balancing the 3553(a) factors. He sentenced the defendant to a year of probation in a lengthy 42 page opinion.

The opinion issued by the judge said the collateral consequences were sufficient punishment for the defendant in this crime and imposing a prison sentence would only serve to punish the defendant twice. The judge pointed out that there are over 50,000 federal and state regulations that imposed penalties on felons. Penalties like denial of government benefits, revocation or suspension of driver’s licenses, revocation of student loans, etc. can have a devastating effect on the lives of convicted felons.

The judge wrote in his opinion that these penalties may be “particularly disruptive to an ex-convict’s efforts at rehabilitation and reintegration into society.” His opinion recognized her poor choices and the need for some form of punishment, but he concluded that the collateral consequences associated with a felony conviction were in themselves a sufficient punishment. He noted that the defendant in this case was 20 at the time of  her conviction living with her mother and she had recently enrolled herself in college while working as a nail technician to support herself. The defendant, now a convicted felon, could lose access to student loans and government grants, as well as, her job. The potential impact on her life is enormous.

As criminal defense lawyers, we always try to defend the client and examine each case to determine whether the government can prove its case. But often, guilty pleas are entered and the defense attorney must be creative and utilize all facts and arguments to make sure the client gets the best possible sentence. Creativity and “thinking outside-the-box,” like arguing the “collateral consequences” of a conviction can be the difference between problem and a prison sentence.


Call Joe Edwards at 614-309-0243 if you have any questions regarding a felony or misdemeanor criminal offense.

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