What are Collateral Consequences in a Criminal Case?January 20, 2015
When people are accused of a crime, they are generally most worried about the direct consequences of a conviction that may be imposed by a court. Depending on the severity of the offenses, these penalties may include significant fines, restitution, probation, or even jail time. While these penalties can be extremely serious are should be avoided at all costs, many people are less aware of the fact that a criminal conviction can also include significant collateral consequences. Simply put, collateral consequences are those that arise as legal sanctions or restrictions due to the existence of a criminal record. In some cases, the collateral consequences of a criminal conviction can affect a person for years and may even have more of an impact on his or her life than the direct consequences that were imposed by the court.
Additionally, a criminal conviction is not the only type of record that can trigger certain collateral consequences. The term “criminal record” can include records that are ancillary to any court proceeding that may have occurred, including records of an arrest, police reports, any recorded statements that were made during an investigation, and the existence of a pending case in the criminal court system. In some cases, a person may plead guilty to a particular offense in return for a dismissal of the original case upon the completion of a successful term of probation. When this occurs, a person who is asked whether they have ever “plead guilty” to a crime must answer “yes” even though no conviction exists on their record. This is just one way that collateral consequences may arise even in the absence of a conviction. In addition, in some cases, you may be required to provide police reports regarding any arrest that has occurred, regardless if any case was ever brought, as a condition of employment or obtaining certain security clearance.1
The following are only a few examples of important collateral consequences that may follow a criminal conviction.
Individuals who are not United States citizens may face severe collateral consequences related to their immigration status if they are convicted of certain offenses. Such offenses include the following:
- Crimes of moral turpitude, which can involve theft, dishonesty, or the intent to hurt another individual. Such offenses can include larceny, fraud, DUI, assault, domestic abuse, and more.
- Aggravated felonies that are set out by the Immigration and Nationality Act at I.N.A. § 101(a)(43).2 The extensive list includes rape, murder, sexual offenses involving a minor, firearms trafficking, drug trafficking, and more.
- Other crimes listed in the I.N.A.,3 including espionage, human trafficking, terrorism, child abuse, drug crimes, and more.
If you are an immigrant—documented or undocumented—a conviction of one of the above offenses can result in your immediate deportation/removal from the United States. Such convictions can further disqualify you from other immigration benefits, such as asylum. These collateral consequences can be extremely harmful to an immigrant, as you can imagine, as they may be separated from their family and home in the United States.
Sex Offender Registry
All 50 states and the District of Columbia require individuals convicted of certain sex offenses to register with the state sex offender registry.4 Sex offenses that may result in registration requirements vary from state to state, but can include the following:
- Rape and sexual assault
- Statutory sexual assault
- Sexual assault or abuse of a child
- Promotion of prostitution of a minor
- Child pornography
- Public indecency
If you have been convicted of a sexual offense, you will be required to register with the state and check in on a regular basis, possibly for the rest of your life. You will also likely have limitations placed on where you can live or work. For example, you may likely not be allowed to reside within a certain proximity of a school or child care center. In short, sex offender registry can mean supervision by the state on where you live and work for your lifetime.
In addition to the restrictions that come with sex offender registry, these registries are all available to the public on the Internet. This means that anyone—family, friends, prospective employers or romantic partners—can find out about your conviction with a simple online search. You registry entry will also have personal information such as your name, home address, work address, date of birth, and more that you may not want to be public knowledge.
Depending on the laws of your state, convictions for certain types of criminal offenses can significantly limit your employment opportunities. For example, many states disqualify anyone who has been convicted of a crime against a person, such as assault, abuse, neglect, or others, from working in home health care and other related fields that requires caring for other individuals. Additionally, many states have laws that place restrictions on certain contracts that disallow anyone with a felony conviction from working on the that job.
Furthermore, state professional licensing boards will often suspend or revoke an individual’s professional license after a criminal conviction. The following types of professionals may find their licenses to be in jeopardy if they are convicted of a criminal offense:
The Adoption and Safe Families Act (ASFA)5 prohibits granting public adoptions or foster approval to any individual that has any type of prior conviction for child neglect or abuse, child pornography or other crimes against children, sexual assault, or homicide. Additionally, fostering and adoptions will not be granted if an individual has a conviction within the previous five years for physical assault or battery or any offense related to drugs.
Additionally, state laws generally require courts to consider whether a parent has a criminal conviction for certain offenses when asking custody determinations. Courts may refuse to award custody rights to parents with criminal records.
These are only some of the many collateral consequences that are set out by the laws of the states. You can find the entire database of state laws related to collateral consequences here.6