Alyson Shute

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Imagine you are twenty-one years old, in college, and without a steady job. You go to Rite Aid and find a lipstick you really love. It’s only a lipstick. It could not get you into that much trouble if you stuffed it into your pocket and walked out, right? After attempting to steal the lipstick, you are charged with theft pursuant to 13 V.S.A. § 2575. This is a minor offense. In the grand scheme, this seems like a small deal, so why not plead guilty rather than go through the process of a trial? Accompanying that guilty plea are collateral consequences. These are the same collateral consequences that accompany all other misdemeanor crimes and some felonies. These consequences could have life-long repercussions.

For most individuals who have never encountered the criminal system, the collateral consequences that attach themselves to any conviction, misdemeanor or felony, are of little concern. However, for the countless individuals who find themselves having their day in criminal court and who are then convicted, these collateral consequences have a tremendous and sometimes permanent effect. Collateral consequences are legal sanctions and restrictions inflicted upon individuals because of their criminal record.[1] They are not a direct consequence or punishment, but rather, additional consequences that entwine themselves with a conviction. The collateral sanctions are imposed by operation of law rather than by a sentencing court.[2] One commenter goes so far as to say that collateral consequences “are not part of the explicit punishment handed down by the court; they stem from the fact of conviction rather than from the sentence of the court.”[3] In Parker v. Ellis, the Supreme Court describes what are now known as collateral consequences saying, “[c]onviction of a felony imposes a status upon a person which not only makes him vulnerable to future sanctions through new civil disability statutes, but which also seriously affects his reputation and economic opportunities.”[4] 

Our legal system must address this topic now because of the vast number of people affected by these collateral consequences due to a minor (misdemeanor) mistake in their past. Interestingly enough, besides the distinction in title, misdemeanors and felonies have many of the same collateral consequences.[5] It is estimated that nearly 90 to 95 percent of criminal cases, both state and federal, are resolved through plea-bargaining.[6]According to the Vermont Judiciary Statistical report, roughly 97 percent of criminal cases in Vermont are resolved through this process.[7] This percentage represents the immense number of individuals who are impacted by collateral consequences. There are collateral consequences hidden within every guilty plea or conviction. These consequences could last indefinitely, even after the punishment “rehabilitates” the individual—a claimed goal of criminal law.[8] In Vermont, there are up to three methods of relief from collateral consequences. However, these methods do not guarantee that these consequences will go away. 

The first section of this Note will briefly describe the criminal trial process and detail the list of potential collateral consequences that accompany both a misdemeanor and felony conviction. Many people are aware of some consequences, but very few truly understand the full extent of the collateral consequences attached to a conviction. Norman Reimer, the executive director of the National Association of Criminal Defense lawyers says “[t]he single most dangerous thing people think is that if they get a conviction and don’t go to jail they won’t face issues.”[9] Misdemeanor convictions, like felony convictions, have serious impacts—collateral consequences.[10]

The second section will discuss the current methods of relief available in Vermont. In some states, including Vermont, collateral consequences are not necessarily permanent. A defendant has the option as early as sentencing to request an order of limited relief under 13 V.S.A. § 8010. An Order of Limited Relief permits a court or an agency to lift the automatic bar of collateral consequences.[11] If a defendant does not request an order for limited relief, they still have another option. Pursuant to 13 V.S.A. § 8011, individuals convicted of an offense can petition the Court for a “certificate of restoration of rights.”[12] An individual is eligible for this “restoration” so long as five years have passed; this restoration applies to both misdemeanors and felonies alike.[13] However, there are certain crimes that are automatically excluded from this restoration, such as sex-related offense.[14]

Additionally, 13 V.S.A.§ 7602, offers an option for expungement and sealing of criminal records.[15] Similar to the restoration of rights, an individual must file a petition with the court requesting expungement or sealing of the records.[16] This statute requires courts to grant the petition for a misdemeanor so long as ten years have passed, the individual has not been convicted of any new crime, any restitution has been paid, and expungement of the criminal history serves the interest of justice.[17] Further, this section will also analyze whether the current system adequately ensures that the defendants fully understand the collateral consequences of pleading guilty.

The third section will discuss a case where the Court held that a failure to inform a client of the collateral consequence regarding deportation resulted in a finding of ineffective assistance of counsel.[18] In Padilla v. Kentucky, the defendant relied on the attorney’s erroneous advice and pled guilty to the transportation of a large amount of marijuana—resulting in automatic deportation.[19] This case illustrates the tremendous impact collateral consequences can have on an individual with no prior criminal history. It also demonstrates how seriously the Court views collateral consequences.

Finally, the fourth section will provide recommendations on possible alternatives besides permanent (unless petitioned) collateral consequences. Nazgol Ghandnoosh, an analyst at the Sentencing Project, explains that collateral consequences limit an individual in their future life chances and set up conditions that may lead them to commit additional crimes.[20] This Note will assess the effects that these collateral consequences have on individuals and recommend an alternative to permanent consequences.

Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.

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[1] National Inventory of the Collateral Consequences of Conviction, ABA Collateral Consequences of Criminal Conviction, http://www.abacollateralconsequences.org (last visited Oct. 24, 2016) [hereinafter Collateral Consequences Inventory].

[2] Margaret Colgate Love, Collateral Consequences After Padilla v. Kentucky: From Punishment to Regulation, 31 St. Louis U. Sch. L. 87, 87 (2011); Jeremy Travis, Invisible Punishment: An Instrument of Social Exclusion, Invisible Punishment: The Collateral Consequences of Mass Imprisonment 16 (The New Press, New York, 2002).

[3] Michael Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated Individuals, 86 B.U. L. Rev. 623, 634 (2006).

[4] Parker v. Ellis, 362 U.S. 574, 593–594 (1960) (Warren, C.J., dissenting) (explaining that collateral consequences impose a “status” upon an individual, which makes reintegration into the community more difficult.).

[5] Maya Rhodan, A Misdemeanor Conviction is Not a Big Deal, Right? Think Again, Time (Apr. 24, 2014), http://time.com/76356/a-misdemeanor-conviction-is-not-a-big-deal-right-think-again/ (citation omitted).

[6] Erica Goode, Stronger Hand for Judges in the ‘Bazaar’ of Plea Deals, N.Y. Times (Mar. 22, 2012), http://www.nytimes.com/2012/03/23/us/stronger-hand-for-judges-after-rulings-on-plea-deals.html.

[7] Vermont Judiciary Annual Statistical Report for FY 2015, Vermont Judiciary, https://www.vermontjudiciary.org/JC/Shared%20Documents/FY15%20Statistical%20Report.pdf. (last visited Oct. 24, 2016).

[8] James, Objectives of Criminal Law, Legal Advise Blog (Feb. 5, 2015), http://www.lukepowell.com/2015/02/objectives-of-criminal-law/.

[9] Rhodan, supra note 5.

[10] Id.

[11] 13 V.S.A. § 8010

[12] 13 V.S.A. § 8011.

[13] Id.

[14] Id.

[15] 13 V.S.A. § 7602.

[16] Id.

[17] 13 V.S.A. § 7602(b)(1).

[18] Padilla v. Kentucky, 559 U.S. 356, 359 (2010).

[19] Id. at 360.

[20] Rhodan, supra note 5.