Avoiding or Minimizing the Consequences of a Criminal Conviction
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Chapter 1: Avoiding or Minimizing the Consequences of a Criminal Conviction
Tracey W. Brame, Western Michigan University Thomas M. Cooley Law School

During the current COVID-19 pandemic, several temporary orders alter certain procedures and filing deadlines in Michigan courts. See Updated: Michigan Court Changes Due to COVID-19 for details. Follow blog posts and discussion in the ICLE Community for further information, and check with your local court about their emergency protocols.

What is a Collateral Consequence?
When Should I Begin Thinking About This?
How Can Knowledge of Potential Collateral Consequences Inform Representation?
Plea Bargaining
How to Use This Book

I.   Introduction

§1.1   As attorneys who defend clients charged with criminal offenses, we rightly focus heavily on the question at the top of almost every client’s mind: “How much time am I facing?” Much of our efforts are spent trying to ensure that our clients spend as little time away from their families and communities as possible. The direct consequences of a criminal conviction—jail or prison time, fines, or supervision—are incredibly important issues for our clients and deserve our staunch efforts to advocate on behalf of clients in plea negotiations and in the courtroom.

Although important, however, the amount of time that the client will serve in custody is only the beginning of the inquiry. Unless your client is one of the less than 10 percent of Michigan prisoners serving a sentence of life without parole, they will return to a community one day where the consequences of the conviction will reverberate long after the release from custody. The issues that your client will face on return are often given little attention on the front end; they are simply overshadowed by immediate concerns of incarceration. However, if we take some time while the criminal case is pending to think about the collateral consequences of the conviction—those not directly related to sentencing—we can take some steps toward making our clients’ eventual transitions home a little easier.

This issue has been in the spotlight over the last 15 years, in part because the thousands of people incarcerated during the 1980s and 1990s are coming home. Between 1980 and 2003, the prison population in Michigan more than tripled. Amy L. Solomon et al., Prisoner Reentry in Michigan 4 (2004). In addition, the number of inmates released increased significantly in the 2000s. Id. at 1. In 2003, the majority of inmates released by the Michigan Department of Corrections were male. Over half of those released had one or more dependents, and a significant number of those released returned to areas that face greater social and economic disadvantages than others. Id. at 13. The effect of the return of incarcerated individuals to already overburdened communities has led to the focused study of issues facing offenders and their communities on their return.

This dynamic has important implications for individual clients as well as their families and communities. For example, in the groundbreaking book The New Jim Crow: Mass Incarceration in the Age of Color (2012), Michelle Alexander discusses how mass incarceration and labeling of African Americans as criminals has negatively affected Black communities, almost on the scale of slavery and Jim Crow eras. She argues that “[once] a person is labeled a felon, he or she is ushered into a parallel universe of in which discrimination, stigma, and exclusion are perfectly legal, and privileges of citizenship such as voting and jury service are off-limits.” Id. at 94. She notes that it does not matter whether a person has actually spent time in prison; the label sticks. Id. You may not be concerned with such broad policy implications in any individual case, but it is important to appreciate the significance of your client’s conviction beyond the time served and know that even a plea agreement that involves little to no jail time could create impediments to your client’s livelihood.

The wealth of data and literature that has flowed from these inquiries provides us with an array of resources to help our clients think through collateral issues even before they serve their sentences. Although it may seem burdensome to add another layer of advocacy to a busy caseload, our duty to counsel clients about collateral consequences flows directly from our duty to advocate generally, and, in some cases, the failure to do so is considered ineffective assistance of counsel. See Padilla v Kentucky, 559 US 356 (2010) (failure to advise client about immigration consequences of guilty plea constitutes deficient performance on part of attorney). Padilla is discussed in more detail in §6.5.

Being well versed on these issues makes one a better attorney for several reasons. Certainly, attorneys engaged in holistic representation serve clients and their communities better. Knowledge about collateral consequences also increases our stature with clients, who are more and more inclined to ask these questions. Our ability to effectively negotiate with the prosecutor is also enhanced when we can ensure that the parties consider the broadest range of possible consequences of a conviction.