Criminal Law

Consequences of a Conviction

The Padilla Court addressed what advice a defendant is to be given about deportation, and in making such a determination the Court first had to determine what type of consequence deportation is.[1] Court determinations on when an attorney must advise a client have turned on how the consequence is classified.[2] There is not complete agreement as to how a particular consequence is determined a direct or collateral consequence.[3] The distinction at times “turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.”[4] Although “That is a useful albeit not foolproof test,” the direct-collateral dichotomy differs in both state and federal courts.[5] Direct consequences typically concern issues that the sentence specifically imposes.[6]

i.  Direct Consequences

Padilla was the first time the U.S. Supreme Court applied the ineffective assistance of counsel to advice regarding what may be considered a collateral consequence because historically only direct consequences were to be advised of.[7] Case law suggested that the judge is required to inform the defendant of the maximum penalty.[8] Currently, in federal court, the judge’s requirements have added advice on “imprisonment, fine[s], and term[s] of supervised release,” in addition to, “any mandatory minimum penalty.”[9] Similar requirements have been adopted in state courts.[10] Consequences that flow automatically from the conviction are one of the best ways to describe direct consequences.[11]

Take for example Michigan Court Rule 6.302(b), which states exactly what each Defendant must understand before accepting a plea bargain as: (1) the name of the offense to which the defendant is pleading, (2) the maximum possible prison sentence for the offense and any mandatory minimum sentence required by law, and (3) if the plea is accepted, the defendant will not have a trial of any kind. The court rule then lists that by pleading the defendant is waving the right: (a) to be tried by a jury; (b) to be presumed innocent until proved guilty; (c) to have the prosecutor prove beyond a reasonable doubt that the defendant is guilty; (d) to have the witnesses against the defendant appear at the trial; (e) to question the witnesses against the defendant; (f) to have the court order any witnesses the defendant has for the defense to appear at the trial; (g) to remain silent during the trial; (h) to not have that silence used against the defendant; and (i) to testify at the trial if the defendant wants to testify. Each of these rights listed in the rule are rights that are waived the moment a plea bargain is accepted.

Most states, if not all have similar court rules, and depending on the state, the attorneys and or court could take it upon themselves to routinely advise the defendant of other direct consequences. Thus, Courts have held that the defendant must be warned the he will lose federal benefits because such is the mandatory result of a specific conviction.[12]

          ii. Collateral Consequences

Aside from punishment, a criminal conviction could result in various adverse consequences,[13] some of which are foreseeable where defense counsel could easily explain it to the client.[14] Collateral consequences are civil disabilities that indirectly result from a criminal conviction,[15] or a collateral sanction or disqualification.[16] The Uniform Collateral Consequences of Conviction Act § 2 (2) defines a collateral sanction as “a penalty, disability, or disadvantage, however denominated, imposed on an individual as a result of the individual’s conviction of an offense which applies by operation of law whether or not the penalty, disability, or disadvantage is included in the judgment or sentence.”[17] Similarly, collateral consequences have been “described as ‘invisible punishments’ because they are imposed by operation of law rather than by decision of the sentencing judge and are not considered part of the ex-offender’s sentence.[18] One Federal Court illustrated that collateral consequences are those “peculiar to the individual and generally result[ing] from the actions taken by agencies the court does not control.”[19]

The Supreme Court has distinguished between direct and collateral consequences, where generally the court must explain to the defendant the former, but not the latter.[20] For the most part the same holds true for defense counsel that is until Padilla v. Kentucky was rendered. The underlying rationale differs where some courts require explanation of consequences that are largely automatic,[21] while others hold that collateral consequences are beyond the reach of the sentencing court.[22] Overall, most courts deem collateral consequences to include a defendant’s  loss of the right to vote or travel abroad,[23] probation, higher penalties for repeated offenders, effects on parole,[24] ineligibility to serve on a jury, disqualification from public benefits, ineligibility to possess firearms, and loss of business, professional license, or civil service employment.[25]

In the majority of jurisdictions, “Deportation is a collateral consequence of conviction because it is a result peculiar to the individual’s personal circumstances and one not within the control of the court system,”[26] where state and federal courts have held that defense counsel and trial courts need not advise a defendant of such consequences before the defendant accepts a plea.[27] Courts will, however, set aside a plea in the event the defendant is “affirmatively misrepresented” that he will not be deported upon entering a guilty plea, even in jurisdictions that hold defendants need not be advised of collateral consequences.[28] Nevertheless, the Padilla Court’s decision may result in more courts, both state and federal either taking it upon themselves or being required to provide each defendant with advice about adverse immigration effects.[29]


[1] Sara E. Dill & Robert J. McWhirter, Practice Pointers for the Criminal Defense Attorney in the Aftermath of Padilla v. Kentucky, ABA Criminal Justice Section Newsletter 1 (Spring 2010) (“The Court, in a 7-2 decision, held that deportation is uniquely severe and that the immigration consequences of criminal convictions are inextricably linked to criminal proceedings.”).

[2] See generally Priscilla Budeiri, Collateral Consequences of Guilty Pleas in the Federal Criminal Justice System, 16 Harv. Civ. Rts.-Civ. Lib. L. Rev. 157 (1981).

[3] Id.

[4]See e.g., Foo v. State, 106 Haw. 102, 102 P.3d 346 (2004).

[5] LaFave, et al., Criminal Procedure § 21.4(d) 817 (3rd ed. 2007).

[6] Id.

[7] See Margeret Love & Gabriel J. Chin, The “Major Upheaval” of Padilla v. Kentucky: Extending the Right to Counsel to the Collateral Consequences of Conviction, ABA Criminal Justice section (Summer 2010);  available at

[8] Hudson v. Warden, 117 Nev. 387, 22 P.3d 1154 (2001).

[9] United States v. Benz, 472 F.3d 657 (9th Cir. 2006); Fed.R.Crim.P. 11(b)(1)(H) (1974).

[10] Lafave, supra note 93.

[11] Id.

[12] Id.

[13] See American Bar Association, Update: The ABA’s Adult Collateral Consequence Project, Criminal Justice Section Newsletter 3 (Spring 2010) (explaining that well over a thousand consequences have already been collected).

[14] Black’s Law Dictionary 298 (9th ed. 2009) (defining collateral consequence as “A penalty for committing a crime, in addition to the penalties included in the criminal sentence.”).

[15] Gabriel J. Chin, Race, The War on Drugs, and the Collateral Consequences of Criminal Conviction, 6 J. Gender Race & Just. 253, 254 (2002).

[16] Uniform Collateral Consequences of Conviction Act § 2 (1) (2009).

[17] Id. at § 2(2) (stating that “collateral sanction” does not include imprisonment, probation, parole, supervised release, forfeiture, restitution, fine, assessment, or costs of prosecution.).

[18] Meghan L. Schneider, From Criminal Confinement to Social Confinement: Helping Ex-Offenders Obtain Public Housing With a Certificate of Rehabilitation, 36 New Eng. J. on Crim. & Civ. Confinement 335 (2010).

[19] Foo v. State, 106 Haw. 102, 102 P.3d 346 (2004).

[20] Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 704 (2002).

[21] United States v. Littlejohn, 224 F.3d 960, 966-67 (9th Cir. 2000) (holding that denial of social welfare as a result of a conviction was “automatic,” and thus a direct consequence).

[22] United States v. Gonzalez, 202 F.3d 20, 27 (1st Cir. 2000).

[23] Meaton v. United States, 328 F.2d 379 (Former 5th Cir. 1964).

[24] Michel v. United States, 507 F.2d 461, 465 (2d Cir. 1974) (stating the general rule under Federal Procedure Rule 11 is that “the trial judge when accepting a plea of guilty is not bound to inquire whether a defendant is aware of the collateral effects of his plea.”).

[25] United States v. Crowley, 529 F.2d 1066 (3d Cir.1976).

[26] See People v. Ford, 86 N.Y.2d 397, 633 N.Y.S.2d 270 (1995); See also 8 U.S.C. § 1251 (1976).

[27] Id.

[28] In rem Yim, 139 Was.2d 581, 588, 989 P.2d 512, 516 (1999).

[29] See infra note 179.

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