INTRODUCTION

THE ABA Standards for Criminal Justice on Collateral Sanctions and Discretionary Disqualification of Convicted Persons (the Standards) propose a substantial change in contemporary United States sentencing practice: The legal disabilities that occur automatically by law upon conviction should be identified and collected and brought into the criminal justice process. The practical problem is that the law imposes many disabilities on those convicted of crimes, in addition to the court-imposed sentence, but no one knows the complete catalog of disabilities that will apply to a particular defendant upon conviction. The legal problem is that the court, prosecutor, and defense lawyer generally have no obligation to inform a defendant of collateral sanctions, even the ones that are known to them, and even obviously important ones, such as lifetime disenfranchisement or loss of employment or deportation. The Standards propose both that the collateral sanctions of criminal conviction be collected, and that defendants be notified of those that apply before they plead guilty and when they are sentenced.

Even if the idea is novel, it is hardly controversial that the legal effects of judicial action should be knowable and known; there are few principled objections available to the idea that defendants should be aware of the consequences of a decision to plead guilty or their legal status and obligations after sentence. However, there may be a broad and deep chasm between an idea that is in the abstract sound and desirable, and practical implementation of that idea in a large and complex institution like a state=s criminal justice system. The symposium giving rise to the papers in this issue brought together a distinguished group of practitioners in Ohio=s criminal justice system as well as other legal experts to discuss how the ABA Standards could be put into practice in Ohio and, by extension, in other states.

The symposium was held on September 24, 2004 at the University of Toledo College of Law. Unlike many academic events, professors did not represent a majority of the panelists or the attendees. Panelists came from across the legal system, including a judge, a legislator, lawyers in practice, and executive branch officials. Equally important were the range and number of attendees. Nearly 150 people registered, including probation and court officials, public and private lawyers, and various outreach program representatives. The quality of discussion and the breadth of knowledge were high because almost every person in the auditorium was a specialist in some branch or field of criminal justice, so almost all participants readily understood the basic issues and were prepared to contribute based on their particular knowledge and experience.

Identifying Applicable Collateral Sanctions

Without question, the symposium=s most dramatic research finding is the compendium of collateral sanctions set forth in the Ohio Revised Code (O.R.C.) collected by two members of the University of Toledo Law ReviewCKimberley R. Mossoney and Cara Roecker. These students scoured the entire 32 volume code and located a total of 395 provisions of Ohio law that impose some collateral disability or penalty upon convicted persons. They sorted these disabilities and disadvantages into six categories, ranging in severity from mandatory and permanent disqualifications, to requirements that a conviction be taken into account in reaching a decision to allocate benefits. The compendium suggests at least two things: (1) that there are many Ahidden@ consequences of a conviction scattered throughout every state code; and (2) that it is possible to identify and analyze them.

Of course, no one can guarantee that even this painstakingly assembled collection is fully comprehensiveCwho knows what obscure language may lurk in obscure corners of the O.R.C. to surprise a criminal defendant. Even so, the compendium makes a unique and important contribution in demonstrating that the task of assembling a state=s collateral sanctions is challenging but possible. Thanks to these students, every Ohio legislator, judge, prosecutor, and defense lawyer has a resource to which they can turn to discover what actual consequences will result from a particular criminal conviction. And, their counterparts in other jurisdictions have both encouragement and a model.

The Standards propose that defense counsel advise criminal defendants when pleading guilty and at time of sentencing of all the collateral sanctions that will be imposed on them because of the conviction. Creating and enforcing this requirement will require certain changes in court procedure, in particular, that the trial judge confirm that defendants have been so advised by their attorneys. The Honorable Robert H. Gorman contributed Collateral Sanctions in Practice in Ohio, offering some practical perspective on implementation of this change. Judge Gorman currently sits on the Ohio Court of Appeals and served as a trial judge and member of the General Assembly, so he is extremely well informed with respect to the difficulties of reforming legal practice. Although the paper recognizes that change in traditional practices can be difficult, it argues that this change would be worth the trouble because it would improve the quality of justice dispensed in Ohio courts.

Criminal defense lawyer McGregor Smyth=s paper explores the practicalities of defenders dealing with collateral sanctions that may face their clients in Holistic Is Not a Bad Word: A Criminal Defense Attorney=s Guide to Using Invisible Punishments as an Advocacy Strategy. Under the Standards, defense counsel play a central role in informing clients about collateral sanctions, and in ensuring that the sentence takes these sanctions into account. This paper offers some specific advice about how to do it, giving concrete examples of how defenders have made judicious use of collateral penalties to secure an appropriate sentence for their clients at the plea bargaining stage.

One of the challenges in identifying and understanding collateral sanctions is determining what legal action counts as a conviction. Hofstra University law professor Nora V. Demleitner=s paper, Thwarting A New Start? Foreign Convictions, Sentencing, and Collateral Sanctions, explores the appropriate legal effect to be given convictions from foreign countries for purposes of triggering collateral sanctions in the United States.

Limiting Collateral Sanctions

The ABA Standards propose that some kinds of deprivations should not be imposed as collateral sanctions, both to promote fairness and to ensure that those convicted of crime will have the opportunity to be self-supporting and not become recidivists. Several papers deal with collateral sanctions that might make it difficult or impossible for former offenders to succeed in the legitimate economy. A paper written by Marlaine Freisthler and University of Cincinnati law professor Mark Godsey, Going Home to Stay: A Review of Collateral Consequences of Conviction, Post-Incarceration Employment, and Recidivism in Ohio, explores limitations on employment and licensing of convicted persons under Ohio law, and proposed legislative reforms. Corinne Carey=s paper, No Second Chance: People with Criminal Records Denied Access to Public Housing, analyzes the problems created by having a criminal record where it comes to securing adequate shelter. At the symposium, Capital University law professor Kent Markus also examined the way in which a criminal history may affect an individual= s ability to resume life in the community, focusing on the extent to which modern technology and the thirst for (and ubiquity of) information has enhanced the stigmatizing effect of a conviction.

Relief from Collateral Sanctions

The ABA Standards propose that jurisdictions create legal mechanisms to alleviate the effect of collateral sanctions that are unwarranted in a particular case. Attorney Pierre Bergeron and Case Western law student Kimberley A. Eberwine=s paper, One Step in the Right Direction: Ohio=s Framework for Sealing Criminal Records, explores the provisions made in Ohio law for sealing or expunging criminal records. It concludes that Ohio=s form of relief is unnecessarily limited in the number of convicted people for whom it is available (first offenders convicted of a limited number of crimes), and unnecessarily broad in what it attempts to accomplish, so that it is correspondingly rarely used.

Conclusion

To our knowledge, this was the first symposium that has focused attention on the collateral consequences of conviction in a single state, and brought together practitioners, judges, and academics to think about how the law might be improved to encourage more successful offender reentry. We hope that the essays and studies in this symposium issue will illuminate the problems presented for those who must work within the framework of these laws, as well as those who are directly affected by them, and point the way for further study and reform.

Margaret Colgate Love (Chair) & Gabriel Jack Chin (Reporter),
ABA Task Force on Collateral Sanctions and Discretionary Disqualification
of Convicted Persons;
Guest Symposium Coordinators