Wednesday, May 25, 2016

"Civil death" by collateral consequences justifies probation

Have you ever wondered just how many collateral "penalties, disabilities, or disadvantages" our fine nation imposes on convicted felons? Nearly 50,000, according to Senior United States District Judge Frederic Block of the Eastern District of New York.

The depth and breadth of these life-disrupting consequences---known as "civil death" through much of our history---compelled Judge Block to impose probation in a drug case with an advisory guideline sentence of 33-41 months:

"The collateral consequences Ms. Nesbeth will suffer, and is likely to suffer---principally her likely inability to pursue a teaching career and her goal of becoming a principal . . . has compelled me to conclude that she has been sufficiently punished, and that jail is not necessary to render a punishment that is sufficient but not greater than necessary to meet the ends of sentencing."

Judge Block went two steps further. First, he declared that defense counsel and the prosecutor have a duty to timely inform the court of significant collateral consequences facing a particular defendant after conviction.

Second, he ordered that "[t]he Probation Department should include a collateral-consequences section in all future presentence reports."

The Tenth Circuit, by the way, has held that collateral consequences are not a proper consideration at sentencing (at least when considering them appears to benefit only wealthy white-collar defendants), though so far only in one unpublished (i.e., non-binding)

Thanks to Jim Pratt for bringing Judge Block's opinion to our attention.

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