Navigating the Civil Consequences of Criminal Cases: A Key Component of Success M O L L Y K O V E L & A M A L E A S M I R N I O T O P O U L O S T H E B R O N X D E F E N D E R S J U L Y 2 8, 2 0 1 5 J U S T I C E F O R V E T S C O N F E R E N C E 2 0 1 5
Jonas Broncks: Who is He? 30 years old OEF/OIF Veteran Father of two children Works as a licensed security guard; thinking about joining the police Section 8 subsidy through the New York City Housing Authority Never been arrested in his life; never been to court in his life
Jonas Broncks: A Single Incident Arrested for drug possession in his apartment Children were in the home at the time of arrest Had just cashed his paycheck to pay bills, so had $1500 in cash on him Fingerprints were taken at the police precinct and the arrest charges were sent to the security guard licensing agency
Jonas Broncks: A Single Incident We focus on: Criminal Prosecution & Outcome Especially in treatment courts, we may also focus on addiction & mental health But at the same time, the client faces: Family Court Case Potential Loss of Employment & License Possible Eviction and Loss of his Section 8 subsidy Forfeiture of Cash Found at Arrest
Why Care About Collateral Consequences? Part of our ethical and moral obligations as attorneys Address the full needs and priorities of clients and help them mitigate risk Can affect success in treatment Can affect recidivism during treatment and after completion Get improved outcomes in criminal case
VA Pension Possible Collateral Consequences: VA Benefits Not eligible for pension after 60 days of imprisonment in a federal, state, or local penal institution as a result of conviction of a felony or a misdemeanor. 38 C.F.R. 3.666. A portion of the benefits can be assigned to an eligible family member during the period of incarceration. 38 C.F.R. 3.666. VA Retirement Homes Ineligible for residence in an armed forces retirement home if convicted of a felony or is not free of drug, alcohol, or psychiatric problems. 24 U.S.C. 412(b). VA Education Benefits If incarcerated for other than a felony, residing in a halfway houses, or participating in work-release programs, can receive full monthly benefits. If incarcerated for a felony conviction, can be paid only the costs of tuition, fees, and necessary books, equipment, and supplies.
Possible Collateral Consequences: Housing Any violent or drug-related criminal activity, permits public housing authorities to forgo normal grievance procedures and sue for eviction in court directly. 42 U.S.C. 1437d(s) and 1437d(t). Applies to both Section 8 vouchers and public housing. Other housing consequences might include evictions charging nuisance, e.g. where apartment is used to sell drugs or where there was an assault upon a neighbor.
Possible Collateral Consequences: Employment and Driver s Licenses Drug and DWI charges can lead to temporary or permanent drivers license suspension or revocation, even before conviction Arrest can lead to suspension of a client s stateissued license for certain professions (e.g., taxi driver s license, security guard) Arrest may also lead to suspension of a client from work until case is resolved (e.g., jobs through the Department of Education) Conviction may permanently bar a client from obtaining certain licenses or getting certain jobs
Possible Collateral Consequences: Immigration Not all veterans are citizens Legal Permanent Residents and some undocumented individuals can enlist in the armed forces Veterans who are non-citizens face the same collateral consequences as non-citizens who are not veterans Arrest alone can lead to deportation Very minor convictions can lead to a legal permanent resident to lose status and get deported.
Possible Collateral Consequences: Family Court Abuse/neglect proceeding might be filed based on the fact that client was home with children at arrest Conviction or subsequent charges may affect evaluation of the best interests of the child in child abuse/neglect or custody and visitation cases In some cases, a plea may mean an automatic finding in Family Court
Possible Collateral Consequences: Other Benefits and Opportunities Any individual with a drug felony conviction for conduct after August 22, 1996 (exact date differs by state) is permanently barred from receiving cash benefits or food stamps unless your state opts out. 21 U.S.C. Sec. 862a. List of states: http://www.lac.org/toolkits/tanf/tanf.htm Loss of SSI and other benefits when incarcerated over a certain number of days. Certain convictions may prevent reenlistment.
Possible Collateral Consequences: Other Rights Right to own firearms 18 U.S.C. 922(g) bars possession of firearms of anyone with a felony conviction or a misdemeanor conviction for domestic violence May bar certain kinds of employment (e.g., police forces) Right to vote Convictions may bar voting temporarily or permanently Right to property Assets can be seized through civil forfeiture
Alternative Courts- Same Consequences Arrest charges alone can trigger consequences so an alternative court like a Vet Court may not save the client from the civil consequences even if the case is ultimately dismissed. Client may enter a plea on the record and then withdraw it after completing services this still counts as a guilty plea for many of the civil consequences outlined here.
How to Address Collateral Consequences: The Bronx Defenders Holistic Model Holistic and comprehensive legal services to our clients & their families. Criminal defense, family, civil attorneys, advocates and social workers working collaboratively and in interdisciplinary teams to assess client legal needs. Provide advocacy and representation in virtually every venue in New York City
How We Do It Identify collateral consequences Civil and immigration attorneys keep track of regulations and outcomes as they help clients; build a database over time All attorneys are cross-trained on different areas of law Screen using a checklist at arraignments Make internal referrals To specialized advocates on each team Make external referrals To other organizations who can represent clients when we cannot
How We Do It: Jonas Broncks At arraignment, criminal attorney would identify his needs Learn that child protective services was called and children were removed following execution of search warrant Learn that he lives in Section 8 housing Learn that he holds a security license and is studying for the police officer s exam
How We Do It: Jonas Broncks After arraignment, criminal attorney would refer Mr. Broncks to other advocates Family Court attorney and parent advocate to help with Family Court case, coordinating defense with criminal attorney Civil attorney to help with housing and employment issues Response to referral can range from a consultation over the phone to active representation in court, depending on capacity and need
Getting Results Family court case moves quicker than criminal case- Mr. Broncks decides not to testify there on advice of criminal counsel. Criminal attorney asks housing and employment advocates about the safety of a plea offer and if it is not safe, gets help talking to prosecutor or judge about why a client cannot accept a particular deal. Mr. Broncks gets civil counsel in his housing and employment matters saving his subsidy, his apartment, and his license.
How You Can Do It
How You Can Do It Screen your clients for collateral consequences Advise your clients about possible collateral consequences Even if you cannot change those consequences, it is important for our clients to know what they are so they can make an informed plea Talk to prosecutors and the judge about possible collateral consequences Can be powerful tools in negotiation at plea and sentencing Be creative: think about getting letters from employers, re-pleading, etc. Reach out to your VJO Identify other organizations to collaborate with & refer to them Legal services organizations Pro bono counsel through local bar associations
How You Can Do It Resources: The Bronx Defenders clearinghouse of info: http://www.reentry.net/ Collateral Consequences Resource Center: http://ccresourcecenter.org/ State-by-state guide to rights restoration and employment laws: https://www.nacdl.org/rightsrestoration/ National list of resources that includes list of advocates who do reentry work: http://www.hirenetwork.org/