Collateral Consequences of a Criminal Conviction
By: Mark A. Friese
In criminal cases, there are “direct” consequences of a guilty plea or conviction. Common direct consequences include fines, court costs, imprisonment, probation, community service, and others. “Collateral consequences” are additional penalties that result from criminal convictions, most often without notice or advance warning.
Collateral consequences are typically classified as civil penalties, required by statute. Examples include immigration consequences, loss of firearm possession rights, offender registration, submission and inclusion of DNA in law enforcement databases, loss of governmental benefits, loss of driving or hunting privileges, suspension from school activities or enrollment, and others. Oftentimes informal community standards or actions of private entities are also described as “collateral consequences.” Examples include academic suspensions by private and public colleges, inability to lease an apartment, and others.
Many times, collateral consequences can be completely avoided. Oftentimes conduct can be prosecuted under multiple statutes, some which have collateral consequences and others which do not. Likewise, use of diversionary agreements, civil compromise statutes, and other options can resolve criminal charges without creating life-changing collateral effects.
Collateral consequences are problematic. First, courts and prosecutors are generally not required to tell offenders about collateral consequences. As a result, many offenders plead guilty without legal advice, only to learn months or years later that the plea results in a serious consequence that cannot be fixed. Secondly, a state court conviction may create collateral consequences under federal law or the law of another state. A common example is a state conviction for a misdemeanor crime of domestic violence, which creates a lifelong federal prohibition against possessing firearms or ammunition. Another common example is a conviction in one state which does not require offender registration in that state, but later requires registration when the offender moves to the new state.
Third, later discovery of a collateral consequence—even a significant one like lifelong loss of firearm possession rights or offender registration—generally does not provide a basis to reopen a closed criminal case. Stated differently, a plea of guilty may create a serious consequence, for which the law does not require notice, and which likely cannot be undone when it is discovered years later.
Fourth, because informal community standards may be described as “collateral consequences,” they are difficult to research, and they change often. A recurring local example is a practice of rental companies denying apartment leases to those with drug offenses, even low-level misdemeanors. There are a number of resources to identify collateral consequences established by law. For example, the Council of State Governments, along with others, maintains an online database, entitled “National Inventory of Collateral Consequences of Conviction,” available at this link: https://niccc.csgjusticecenter.org/ The database lists 469 potential collateral consequences for a North Dakota criminal conviction. Each of the 469 identified consequences are provided by law, not informal policy.
Fifth, collateral consequences may be applied retroactively. A recurring example of retroactive application arises with firearm possession rights and offender registration. With retroactive application, a change to the law in 2020 may result in a collateral consequence for a 2018 criminal conviction, even when the consequence did not apply at the time of conviction. While the law generally prohibits retroactive application of penalties, courts routinely affirm retroactive application of consequences which are “collateral” rather than direct.
Sixth, what constitutes a “conviction,” triggering a consequence, varies depending on the jurisdiction, offense, and consequence. For example, North Dakota law permits courts to defer sentencing. In most instances of deferred sentencing, the offender completes probation without incident, and no judgment of conviction is ever entered. As a result, the charge is dismissed and the file is sealed without a “conviction.” One would logically think a deferred and dismissed charge could not trigger collateral consequences because no formal conviction results. But logic is often defied by the law—a dismissed charge under these circumstances will invariably create significant collateral consequences, including firearm disabilities under state and federal law. This occurs for two reasons: 1.) other states and the federal government apply their own definition of “conviction;” and 2.) there are specific North Dakota collateral consequences which apply even when cases are deferred and dismissed—most common are driver’s license penalties and loss of firearm possession rights.
Unfortunately, many lawyers practicing in the area of criminal law pay close attention only to the direct consequences. Too often I am contacted by clients who seek legal help after attempting to handle a criminal case on their own, or after an inexperienced or disinterested lawyer failed to advise the client of potential collateral consequences.
Further, most clients are very surprised that the indirect consequences of a criminal charge are oftentimes far worse than the direct consequences. Because it is nearly impossible to reverse collateral consequences after they are imposed, it is important to seek legal advice and direction from a lawyer who researches and understands not only the direct but also the collateral consequences particular to any given case.
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