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Foreseeing the "four C's" (collateral consequences of criminal convictions): increasingly, the collateral consequences of a criminal conviction are more grave than the direct penalties. Judges and lawyers must do their part to keep defendants apprised.

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It was a busy morning in criminal court and Judge Justice was finishing the thirtieth negotiated plea. The lengthy docket allowed little time for anything other than the required guilty plea and appeal admonitions under Illinois Supreme Court Rules 402 and 605.

During a recess, the circuit clerk asked the judge if a convicted felon, still on parole, could serve on a grand jury. The parolee had received a grand juror summons and wanted to serve. Having not researched the issue before, the judge requested a law clerk to find the applicable cases and statutes.

The request highlighted an area of increasing concern to the criminal justice system. Criminal defendants typically focus only on the direct and immediate consequences of their guilty plea (e.g., fine, court costs, imprisonment, restitution, etc). Later they suffer numerous collateral consequences of criminal convictions (referred to as the "four c's"). Criminal justice experts urge, and a recent supreme court decision demands, that lawyers and judges better understand and advise defendants of these consequences prior to their guilty plea.

Communicating collateral consequences

Over the years, hundreds of state and federal laws and administrative regulations have imposed collateral sanctions and disqualifications for persons convicted of criminal offenses. During the same time, many crimes have been enhanced to felony levels, thus making more people subject to some of the most severe collateral consequences.

These negative consequences affect employment, licensing, housing, education, public benefits, immigration, family law, and many other areas. In some states, up to 700 such consequences have been identified. The millions of people who have been con victed of a felony are struggling to find employment because of the increased use of background checks and other limitations on their options imposed by various laws and regulations.

While these collateral consequences are intended to protect public safety, it is also in the public interest to allow those who have served their sentences to reintegrate into society so they can pay their fines and support themselves and their families. Studies are underway at the state and federal levels to collect into a single document all existing collateral consequences in statutes, regulations, and court decisions. This is an important first step in analyzing these issues.

One such effort is through the National Conference of Commissioners on Uniform State Laws. They have approved a Uniform Act on Collateral Consequences of Conviction that would require such identification, collection, and compilation for each state that adopts it (available on the web at http://www.law.upenn.edu/bll/ archives/ulc/ucsada/2009_final.htm).

Once that information is compiled, the question will be how to effectively communicate it to a criminal defendant. One option would be a printed compilation delivered to the defendant by the attorney or court at an early stage of the criminal proceedings. It would do little good to present the defendant a lengthy brochure at the time of a plea. The study would also make possible a comprehensive review of the individual sanctions by the legislature to see if they should be retained or modified.

States are also considering procedures, beyond a seldom-granted pardon, that would grant relief from collateral consequences and restore rights. Illinois has a variety of procedures located throughout the Illinois Constitution and statutes (see, e.g., IL Const Art III, [section] 2 (Voting Disqualifications); 730 ILCS 5/5-5-5 (Loss and Restoration of Rights); and 730 ILCS 5/5-5.5-5, et seq (Discretionary Relief from Forfeiture and Disabilities Automatically Imposed By Law)).

The Padilla case

In Padilla v Kentucky, 130 S Ct 1473 (2010), the United States Supreme Court recently held that the Sixth Amendment right to effective assistance of competent counsel requires that the criminal defendant be advised of the deportation consequences of a guilty plea before it is entered. The attorney must make a reasonable inquiry, and if the specific consequence could be "easily determined" it must be disclosed. Where the deportation consequences are unclear or uncertain the duty may be more limited (e.g., advise of possible adverse immigration consequences and recommend an immigration attorney for further inquiry).

While Illinois courts have been advising criminal defendants generally of possible immigration consequences pursuant to 725 ILCS 5/113-8, since 2004, that does not appear to be sufficient where the specific consequence can be "easily determined." Many Illinois lawyers and judges who are not versed in immigration law are looking to sources such as www.ImmigrantDefenseProject. org for preliminary guidance on how to meet Padilla's requirements.

The concurring and dissenting opinions in Padilla note the wide variety of potential collateral consequences of conviction, including civil commitment, civil forfeiture, the loss of the right to vote, disqualification from public benefits, ineligibility to possess firearms, dishonorable discharge from the Armed Forces (or ineligibility to enlist), and loss of business and professional licenses. A criminal conviction can also damage a defendant's reputation and impair his or her ability to obtain future employment or business opportunities. Other potential consequences include loss or restriction of driving privileges, sex offender registration and limitations on where sex offenders can live, and predicate offenses for enhanced sentencing or sexually dangerous person certification.

The issue remains open whether a criminal defense attorney's sixth amendment duties extend to providing advice about collateral matters other than deportation. (For more, see Court Supervision after Padilla v Kentucky by Gary J. Ravitz in the July 2010 IBJ). There is concern that mandating such advice will lead to more motions to set aside guilty pleas or more refusals to plead, with an increase in jury trials that could challenge an already high volume court system. Busy public defenders and the criminal defense bar are also concerned about having the time and expertise to fulfill the additional duties. On the other hand, judges and lawyers must understand that the collateral consequences of guilty pleas may be much greater than the direct consequences.

The far-reaching four c's

Just then, the law clerk entered chambers with some information on the grand jury service issue. Grand jurors must meet the same qualifications as petit jurors (705 ILCS 305/9.1). Petit jurors must be "[f]ree from all legal exception, of fair character, of approved integrity, [and] of sound judgment" (705 ILCS 305/2).

Apparently, the prosecutor would have to decide whether to challenge the potential grand juror, and the court would have to decide the character standard on a case-by-case basis. Jury service is yet another example of how the "four c's" impact on the convicted defendant and court system in often unpredictable ways.

Ronald D. Spears of Taylorville is a judge of the fourth judicial circuit and immediate past president of the Illinois Judges Association.
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Title Annotation:Illinois
Author:Spears, Ronald D.
Publication:Illinois Bar Journal
Date:Aug 1, 2010
Words:1108
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