Senior Eastern District Judge Frederic Block issued a 42-page opinion in United States v. Nesbeth, 15-CR-18(FB), calling for a close reexamination of the collateral consequences that follow felony convictions, the ways these consequences hamper rehabilitation efforts, and their inclusion as a factor in determining the appropriate sentence under 18 U.S.C. 3553(a). (N.B. Ms. Nesbeth was represented by Amanda David and the Eastern District Office of the Federal Defenders of New York.)
Following a jury trial in the case, Judge Block imposed a one-year probationary sentence in a case with a guidelines range of 33-41 months. He then issued the lengthy opinion because “sufficient attention has not been paid at sentencing” to the many automatic collateral consequences that flow from a defendant’s felony conviction. Many of these consequences, he wrote, “serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences” but their effect “can be devastating.” Opinion at 2.
Prior to the sentencing, Judge Block invited briefing on the collateral consequences that would flow from the conviction in the case as well as the role of those consequences in the Court’s 18 U.S.C. 3553(a) analysis. The opinion details the history of collateral consequences as well as the depth and breadth of collateral consequences across the country before discussing the collateral consequences that attach to the drug conviction in the case. In the end, Judge Block concluded that the collateral consequences – particularly the impact the conviction will have on Ms. Nesbeth’s ability to pursue her planned career as a teacher and principal – resulted in sufficient punishment and that no jail sentence was necessary to meets the statutory sentencing objectives.
The Court closed the opinion by holding defense attorneys, prosecutors, and the probation department responsible for alerting the sentencing court to the collateral consequences that flow from a case so those consequences can be factored into the 3553(a) analysis. Judge Block discussed the Supreme Court’s language in Padilla v. Kentucky and the responsibilities of defense attorneys to both advise their clients regarding collateral consequences and to bring them to the attention of the sentencing court. “What is established,” Judge Block wrote, “is defense counsel’s ‘overarching duty to advocate the defendant’s cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution.'” Opinion at 38 (quoting Strickland v. Washington). He cited Rule 3.8 of the Model Rules of Professional Conduct and the commentary stating that a “prosecutor has the responsibility of a minister of justice and not simply that of an advocate” as the basis for a prosecutor’s obligation to bring collateral consequences to the attention of the sentencing court. Opinion at 38. Finally, he instructed that the “Probation Department should include a collateral consequences section in all future presentence reports” because the collateral consequences are relevant to the appropriate kind of sentence, the appropriate sentence within the guideline range, and any basis for departing from the guideline range. Opinion at 39.
The opinion contains fantastic language about the severe impact of collateral consequences, consequences criminal defense lawyers know may be more punishing toward our clients than the actual sentence handed out by the court. Defense attorneys should be able to use Judge Block’s extensive exploration of collateral consequences to advocate for consideration of these consequences as part of the 3553(a) analysis and as a basis for a below-guidelines sentence. The opinion contains information regarding resources that list collateral consequences, such as the National Association of Criminal Defense Lawyers’ treatise Collateral Consequences of Criminal Convictions: Law, Policy, and Practice and the American Bar Association’s collateral consequences database accessible at abacollateralconsequences.org.
The New York Times has coverage of the case here.